Foss v. First Nat. Bank

• Decision Date: 01 January 1880
• Parties: FOSS and others v. THE FIRST NATIONAL BANK OF DENVER.
• Court: U.S. District Court — District of Colorado

3 F. 185

FOSS and others v. THE FIRST NATIONAL BANK OF DENVER.

United States Circuit Court, D. Colorado.

1880

L. C Rockwell and J. Q. Charles, for motion.

Wagner Dyer & Emmons and W. S. Decker, opposing.

McCRARY C.J.

This controversy relates to a fund which, under a written agreement between Simeon H. Foss, Absalom V. Hunter, and Charles R. Bissell, was deposited to their joint credit with the First National Bank of Denver. The money can be drawn from the bank only upon the joint check of the said Foss Hunter and Bissell, and a dispute having arisen between them as to their respective shares thereof, no joint check has been signed.

On the eighth of January, 1879, defendant Bissell gave notice in writing to the bank that he claimed seven-twelfths of the fund, and that until his claim was adjusted he objected to the payment of any part of the fund to the other claimants. On the sixth of March following the plaintiffs in the original bill, Foss and Hunter, served a written notice on the bank, claiming to own nine-twelfths of said fund, and declaring that said Bissell was entitled to three-twelfths only, and they demanded of the bank payment of eight-twelfths of the amount on deposit, leaving in the hands of the bank one-twelfth, as in dispute between them and Bissell. It also appears from an inspection of these notices, that Bissell claims four-twelfths of the fund in his own right, and three-twelfths as agent and attorney for one C. J. Reynolds, and that Foss and Hunter deny all claims on behalf of said Reynolds. The plaintiffs in the original bill, Foss and Hunter, instituted this proceeding in order to settle the controversy as to the proper division of the fund, and pray decree directing payment to them of their alleged share, to-wit: eight-twelfths thereof. Defendant Bissell answers, claiming, in his own right and as representing C. J. Reynolds, to be entitled to seven-twelfths.

The bank answers, among other things, that it has no interest in the fund, and is only holding it as a depository, and does not know to which of the claimants it ought of right to render and pay the same. Of the cross-bill filed by the bank I will speak presently. The defendant Bissell moves to dismiss for want of jurisdiction. The motion is urged upon the ground that all the parties are shown by the bill to be citizens of the state of Colorado, and that there is no jurisdiction under the national bank act, because the First National Bank of Denver appears, by the record, to be only a nominal party, without interest in the litigation.

1. It may be regarded as settled that national banks may sue and be sued in the federal courts by virtue of the provisions of section 629 of the Revised Statutes of the United States, which provides as follows:

'Section 629-- Jurisdiction. The circuit courts shall have original jurisdiction as follows: * * * 'Tenth-- Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations.' ' First Nat. Bk. Omaha v. County of Douglas, 3 Dillon, 298; Bank of Bethel v. Pahquioque Bank, 14 Wall. 383-395; Kennedy v. Gibson et al. 8 Wall. 498.

Under a similar provision of the charter of the United States Bank of 1816, a question was made as to the power of congress to confer jurisdiction upon a federal court in a case not necessarily involving the construction or the validity of a law of the United States, or of some provision of the constitution, or of a treaty. This question was raised upon the second section of the third article of the constitution, which limits the judicial power of the United States to 'cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,' and it was claimed that a case against a bank of the United States was not necessarily a case arising under a law of the United States. But the supreme court, in the case of Osborn v. United States Bank, 9 Wheat. 738, in which an elaborate opinion was delivered by Chief Justice Marshall, held that the act of congress conferring jurisdiction upon the circuit courts in all suits by or against such banks, irrespective of the subject-matter, was constitutional.

This ruling applies with full force to the construction of the above-quoted provision of the Revised Statutes.

2. It seems to be well settled that the joining in a suit of merely nominal or formal parties can have no effect, either in conferring or excluding jurisdiction. Browne v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421; Wood et al. v. Davis, 18 How. 467. Trustees and executors do not belong to this class. They are, although suing for others, the real prosecutors of the suit. They are parties to the contract. McNutt v. Bland, 2 How 9-10; Knapp v. Railroad Co. 20 Wall. 117. In the latter case, which was a suit by a trustee, the court said: 'He is not a mere passive instrument in the litigation. On the contrary, he is active in prosecuting it, and would be remiss in his duty if he failed in using all proper means to bring it to a successful issue. As the cause of action is vested in him, the court looks to his citizenship in determining the question of jurisdiction, and not to the residence of those persons who are beneficially interested in the subject-matter of the litigation. ' McNutt v. Bland was a suit on the official bond of a sheriff executed to the governor of the state. The action was brought in the name of the governor of Mississippi, against a citizen of that state, but for the use of citizens of another state. The jurisdiction was upheld upon the ground that the governor was a nominal party only, the court observing that 'in no just view of the constitution or law can he be considered...