67 F. 567 | U.S. Circuit Court for the District of Eastern Louisiana | 1895
Heretofore, the city of New Or leans excepted "that this suit is improperly prosecuted against the said city, all powers and liabilities appertaining to the drainage fund or tax having- been withdrawn from said city, and vested in a receiver, by decree of this court in a suit of J. W. Peake v. New Orleans, No. 12,008; that, since said decree, the city is without authority to stand in judgment, and this suit must be prosecuted against said receiver, and not against said city.” The exception was overruled, and subsequently the cause was fixed for trial on the merits. It was taken up before a jury, and, the evidence on both sides being closed, the plaintiffs moved the court to direct a verdict in their favor; the defendant moving similárly for the direction of a verdict in its favor. Defendant’s motion is virtually based on the same grounds upon which the exception was founded.
After having heard reargument of the matter set forth in the exception, and having consulted the authorities which the defendant’s counsel now cites, I am clear that the exception should have been
Counsel for plaintiffs cite Bank of Bethel Case, 14 Wall. 383; High, Rec. §§ 258, 260; Mercantile Trust Co. v. Pittsburg & W. R. Co., 29 Fed. 732; Tracy v. Bank, 37 N. Y. 523. These authorities have no bearing on the matter in hand. They simply declare that actions may be instituted against a debtor, although a receiver has been appointed over him, where the rights and remedies of the plaintiff terminate with the original debtor, and when the receiver is not to be adjudged to do anything for plaintiff’s benefit. But the suit at bar is not a suit against a debtor over whom a receiver lias been appointed. No receiver has been appointed to the defendant, and the highest authority lias declared that the city is not: a debtor an this matter. This is a suit against the city as administrator or collector of a fund. Plaintiffs pray to be paid out of that fund, and this court has heretofore taken away from the city any right to touch it. Defendant’s counsel now cites Justice Bradley’s opinion in Vose v. Reed, 1 Woods, 650, Fed. Cas. No. 17,011; also, 20 Am. & Eng. Enc. Law, 304, and the cases cited in the notes.
It is perfectly clear that there must be judgment in favor of the city of New Orleans. However, as plaintiffs may properly plead surprise, a mistrial or continuance will be entered, if they so desire.