John Cochran v. County of Montgomery No 37 John Cochran v. County of Montgomery No 112

• Citation: 199 U.S. 260,26 S.Ct. 58,50 L.Ed. 182,4 Ann. Cas. 451
• Decision Date: 27 November 1905
• Docket Number: 112,Nos. 37,s. 37
• Parties: JOHN J. COCHRAN and Fidelity & Deposit Company of Maryland, Plffs. in Err., v. COUNTY OF MONTGOMERY. NO 37. JOHN J. COCHRAN et al., Petitioners, v. COUNTY OF MONTGOMERY. NO 112
• Court: United States Supreme Court

199 U.S. 260

26 S.Ct. 58

50 L.Ed. 182

JOHN J. COCHRAN and Fidelity & Deposit Company of Maryland, Plffs. in Err.,

v COUNTY OF MONTGOMERY. NO 37. JOHN J. COCHRAN et al., Petitioners, v. COUNTY OF MONTGOMERY. NO 112.

Nos. 37, 112.

Argued November 2, 1905.

Decided November 27, 1905.

This action was brought January 21, 1902, in the city court of Montgomery, Alabama, by the county of Montgomery, one of the counties of the state of Alabama, against John J. Cochran, a citizen of that county and state, and Fidelity & Deposit Company of Maryland, a corporation of the state of Maryland, Cochran being the treasurer of the plaintiff county, and the Fidelity & Trust Company of Maryland being the sole surety on the official bond of said Cochran as such county treasurer, to recover damages for certain alleged breaches of said official bond. Cochran was charged with the conversion of amounts belonging to the general fund of the county, and of amounts belonging to the road and bridge fund. Demurrers to the complaint were severall filed by defendants in the state court.

February 15, 1902, the Fidelity & Deposit Company presented to the district judge of the United States for the middle district of Alabama, holding the circuit court, its petition for the removal of the cause into the circuit court of the United States for that district, alleging, among other things, that the matter in dispute exceeded the sum of $2,000 exclusive of interest and costs, and that the said controversy is between citizens of different states, in that the plaintiff was, at the time of the commencement of said suit, and still is, a citizen of the state of Alabama, and your petitioner, The Fidelity & Deposit Company of Mryland, was, at the time of the commencement of said suit, and still is, a citizen of the state of Maryland, and of no other state, having its principal office in the city of Baltimore, in the state of Maryland, and that your petitioner desires to remove this suit, which is now pending and undetermined in said state court, before the trial thereof, into the circuit court of the United States to be held in the middle district of Alabama.

The petition then averred that from prejudice or local influence in favor of the plaintiff, and adverse to this defendant, it will not be able to obtain justice in said court or in any other state court to which the defendant may, under the laws of this state, have the right to remove said cause, on account of said prejudice or local influence; that the suit was against John J. Cochran, the treasurer of said county, and petitioner, a surety company and a surety on the official bond of said Cochran as such treasurer, to recover the sum of $120,000 the full penalty of the bond; and that by reason of the nature of said suit, all the residents and citizens of said Montgomery county have a direct interest in the recovery by the said plaintiff of the amount claimed.

It was further alleged that Cochran was 'practically financially irresponsible' and therefore 'practically only a nominal party to the suit,' because the surety company 'would be obliged to meet practically the whole claim should judgment be rendered against defendants;' and then set forth certain circumstances tending to show that there was local prejudice against the surety company 'in any county in the state of Alabama in which said case should be tried.' On the filing of the petition the judge entered an order finding that it appeared to the court 'that from local prejudice or local influence' the surety company would not be able to obtain justice in the city court of Montgomery, or in any other state court to which the company might have the right to remove the cause, and that the court was of opinion that it should be removed to the circuit court on the giving of bond in the penalty of $1,000, and ordered the removal of the cause accordingly. The case came on to be heard in the circuit court at the May term, 1902, when the plaintiff moved to remand upon the ground that the Federal court was without jurisdiction, one of the defendants being a citizen of the same state as the plaintiff. This motion was overruled. 116 Fed. 985. On the trial the plaintiff amended the complaint by adding four additional counts, to which demurrers were sustained; and the case was tried on the original complaint and the general issue and certain special pleas interposed by defendants. The result was a judgment in favor of plaintiff for the amount of the general fund converted, but, under the rulings of the court, there was no recovery on account of the road and bridge fund. On writ of error sued out by plaintiff this judgment was reversed and a new trial ordered by the court of appeals. 57 C. C. A. 261, 121 Fed. 17. On a second trial, May 28, 1903, the complaint was amended in certain particulars and three new counts added. The second trial resulted in a judgment in favor of plaintiff for an amount less than the amount claimed. On this judgment cross writs of error were sued out from the circuit court of appeals, and the judgment reversed on the writ brought by plaintiff, and a new trial ordered. 62 C. C. A. 70, 126 Fed. 456. The third trial, February 3, 1904, resulted in a judgment in favor of plaintiff for the full amount of the road and bridge fund converted by Cochran, with interest, less certain admitted payments made by him, and not including the amount of the general fund, which had been, in the meantime, voluntarily paid by the company. On this last judgment, defendants sued out a writ of error to the court of appeals, and the judgment was affirmed. 62 C. C. A. 680, 128 Fed. 1019. And thereupon the present writ of error was allowed. The case is numbered 37. Application for certiorari was made, and is numbered 112.

Messrs. Edgar H. Gans and Thomas A. Whelan for plaintiffs in error and petitioners.

[Argument of Counsel from pages 263-265 intentionally omitted] Messrs. William L. Martin, John G. Finley, and Jesse F. Stallings for defendant in error and respondent.

Statement by Mr. Chief Justice Fuller:

[Argument of Counsel from pages 265-267 intentionally omitted] Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court:

The first question is whether this court can entertain jurisdiction of this writ of error, and this must be answered in the negative if the ground on which the jurisdiction of the circuit court was invoked was 'dependent entirely upon the opposite parties to the suit or controversy being . . . citizens of different states,' because in such case the judgment of the circuit court of appeals was final. Act of March 3, 1891 (26 Stat. at L. 828, chap. 517, § 6, U. S. Comp. Stat. 1901, p. 550).

By § 1 of the judiciary act of 1887 [24 Stat. at L. 552, chap. 373], as corrected in 1888 (25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), the circuit courts of the United States are given 'original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and [1] arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or [2] in which controversy the United States are plaintiffs or petitioners; or [3] in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid; or [4] a controversy between citizens of the same state claiming lands under grants of different states; or [5] a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, . . . and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.'

Section 2 (U. S. Comp. Stat. 1901, p. 509) of the act provides for the removal of causes, as follows:

'That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district.

'Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that state.

'And when, in any suit mentioned in this section, there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.

'And where a suit is now pending, or may be hereafter brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before...