Stuart v. Bank of Staplehurst

• Decision Date: 09 February 1899
• Docket Number: 8611
• Citation: 78 N.W. 298,57 Neb. 569
• Parties: A. P. S. STUART v. BANK OF STAPLEHURST
• Court: Nebraska Supreme Court

78 N.W. 298

57 Neb. 569

A. P. S. STUART v. BANK OF STAPLEHURST

No. 8611

Supreme Court of Nebraska

February 9, 1899

ERROR from the district court of Seward county. Tried below before BATES, J. Affirmed.

AFFIRMED.

C. C Flansburg, for plaintiff in error:

It was the duty of the state court, upon the filing of the petition and bond, to proceed no further in the cause. (Stevens v Phoenix Ins. Co., 41 N.Y. 149; Shaft v. Phoenix Mutual Life Ins. Co., 67 N.Y. 544; State v. Coosaw Mining Co., 45 F. 804; Torrent v. Martin Lumber Co., 37 F. 727; Clark v. Chicago, M. & S. P. R Co., 11 F. 355; Sweet v. Chicago, M. & S. P. R. Co., 11 F. 355; Hatch v. Chicago, R. I. & P. R. Co., 6 Blatch. [U. S.] 105.)

The question of jurisdiction belongs to the federal court and must be determined there exclusively (Cobb v. Globe Mutual Life Ins. Co., 5 Fed. Cas. 2, 921; Fisk v. Union P. R. Co., 8 Blatch. [U. S.] 243); and the fact that other than federal questions may arise in the course of the litigation cannot withdraw the question from the jurisdiction of the federal court. (Tennessee v. Davis, 100 U.S. 294; Mackaye v. Mallory, 6 F. 751; Osborne v. Bank of United States, 9 Wheat. [U. S.] 738; Butterfield v. Home Ins. Co., 14 Minn. 310; Gordon v. Longest, 16 Pet. [U. S.] 97; Kanouse v. Martin, 15 How. [U. S.] 198; French v. Hay, 22 Wall. [U. S.] 250; Gaines v. Fuentes, 92 U.S. 10; New Orleans, M. & C. R. Co. v. Mississippi, 102 U.S. 135; Baltimore & O. R. Co. v. Koontz, 104 U.S. 14; Wilson v. Western Union Telegraph Co., 34 F. 562; Marshall v. Holmes, 141 U.S. 589; Removal Cases, 100 U.S. 472; Morey v. Lockhart, 123 U.S. 56; Wilkinson v. Nebraska, 123 U.S. 286; Sherman v. Grinnell, 223 U.S. 679; Bressler v. Wayne County, 25 Neb. 468; Fitzgerald v. Fitzgerald & Mallory Construction Co., 41 Neb. 374; Freeman v. Howe, 24 How. [U. S.] 451.)

As to what is a federal question see: Leather Manufacturers Bank v. Cooper, 120 U.S. 778; Carson v. Dunham, 121 U.S. 421; St. Paul, M. & M. R. Co. v. St. Paul & N. P. R. Co., 68 F. 13; Cohens v. Virginia, 6 Wheat. [U. S.] 357; Van Allen v. Atchison, C. & P. R. Co., 3 F. 547.

As to what the federal question involved see: National Exchange Bank v. Peters, 44 F. 13; Pollard v. Bailey, 20 Wall. [U. S.] 520; Fourth Nat. Bank v. Francklyn, 120 U.S. 747; Ripley v. Sampson, 10 Pick. [Mass.] 370; Stone v. Wiggin, 5 Met. [Mass.] 316; Gray v. Coffin, 9 Cush. [Mass. ] 192; Cole v. City of Muscatine, 14 Ia. 296.

A petition in the nature of a common-law action of deceit for damages on the ground of false representations is insufficient unless it shows the representations were made to the person complaining. (Smithers v. Calvert, 44 Ind. 242.)

When parties severally liable for distinct torts are joined as defendants in a single action it is good ground of demurrer. (Franklin Fire Ins. Co. v. Jenkins, 3 Wend. [N. Y.] 130; Pomeroy, Remedies & Remedial Rights secs. 308, 309.)

George W. Lowley, Pound & Burr, Roscoe Pound, and Biggs & Thomas, contra:

Assignments of error not discussed in the brief are waived. (3 Ency. Pl. & Pr. 717; Wood Mowing & Reaping Machine Co. v. Gerholt, 47 Neb. 397; City of Kearney v. Smith, 47 Neb. 408; Glaze v. Parcel, 40 Neb. 732; Erck v. Omaha Nat. Bank, 43 Neb. 613.)

Question not raised by proper assignments of error will be disregarded. (3 Ency. Pl. & Pr. 717; Post v. Olmsted, 47 Neb. 893.)

The district court had jurisdiction and the case was not removable. (Tennessee v. Union & Planters Bank, 152 U.S. 454; Cherokee Nation v. Georgia, 5 Pet. [U. S.] 69; Gold-Washing & Water Co. v. Keyes, 96 U.S. 201.)

The proceedings of a state court, after a petition and bond for a removal which is refused by the state court, depend upon the fact whether the cause is in fact removable or not. (Stone v. South Carolina, 117 U.S. 430; Carson v. Hyatt, 118 U.S. 279; Burlington, C. R. & N. R. Co. v. Dunn, 122 U.S. 513; Crehore v. Ohio & M. R. Co., 131 U.S. 240; Missouri P. R. Co. v. Fitzgerald, 160 U.S. 556.)

A published false statement of the condition of a bank is actionable though not addressed to the individual defrauded. (Salmon v. Richardson, 30 Conn. 360; Bartholomew v. Bentley, 15 O. 659; Scale v. Baker, 70 Tex. 283; Morgan v. Skiddy, 62 N.Y. 319; Huntington v. Attrill, 118 N.Y. 365; Solomon v. Bates, 118 N. Car. 311; Caldwell v. Bates, 118 N. Car. 323; Tate v. Bates, 118 N. Car. 287; Edgington v. Fitzmaurice, 29 L. R. Ch. Div. [Eng.] 459; Peck v. Gurney, 8 Moak [Eng.] 2; Westervelt v. Demarest, 46 N. J. Law 37.)

OPINION

HARRISON, C. J.

The defendant in error instituted this action in the district court of Seward county and alleged for cause that the plaintiff in error and parties who were co-defendants were at the times of the occurrences upon which the suit was predicated, directors of a national bank, in the business which its name indicates, in the city of Lincoln, and at various stated times made and published, or caused them to be published, in newspapers of general circulation in said city, and in the state of Nebraska, certain false statements of fact of and concerning the bank of which they were directors, and its matters of business, and which related to its solvency and reliability; that such statements were made and published with a knowledge of their falsity and with an intent to mislead and deceive the public and the defendant in error, and that the statements accomplished or served the purpose for which they were intended; that the defendant in error was thereby induced to deposit money to a large amount, stated in the petition, in the said bank, which was lost by reason of the insolvency and failure of the said bank. The commencement of the action was of date February 25, 1895. On March 29, 1895, the plaintiff in error and his co-defendants filed an application or petition for the removal of the cause to the United States circuit court for the district of Nebraska. Said petition was accompanied by the requisite bond. On April 1, 1895, there was filed in the state court for the plaintiff in error and each of his co-defendants a demurrer to the petition. These were on April 5, 1895, overruled and the application for removal was denied.

There appears in the record the following, as setting forth what was done in the cause in the federal court:

"And on the 14th day of October, 1895, the following order was made:

"'This cause having been heard on the motion of the plaintiff to remand the same to the state district court in and for Seward county, Nebraska, from whence it came, Messrs. Pound & Burr and Biggs & Thomas appeared for the plaintiff and Deweese & Hall, C. O. Whedon, and C. C. Flansburg for the defendants, whereupon, after careful consideration thereof, and being fully advised in the premises, it is now on this day considered, ordered, and adjudged by the court that said motion be, and the same is hereby, overruled, to which ruling and order by the court said plaintiff by his attorneys then and there duly excepted.'

"And on the 8th day of May, 1896, the following further order was made in said cause, i. e:

"'This cause coming on for hearing on the motion of the plaintiff to remand the same to the state district court in and for Seward county, Nebraska, from whence it came, was argued and submitted to the court by attorneys for the respective parties, whereupon, after careful consideration thereof, and being fully advised in the premises, it is now on this day ordered and adjudged by the court that said motion be, and the same is hereby, sustained, and said cause is remanded to the said district court in and for Seward county, Nebraska, from whence it came.'"

May 6, 1895, answers were filed in the state court for all parties sued except the plaintiff in error. July 9, 1895, and during the pendency of a term of the state court, a judgment by default was rendered therein against the plaintiff in error, and the case is presented for him to this court by error proceeding. The petition in error is as follows:

"1. The petition does not state facts sufficient to constitute a cause of action against this plaintiff and in favor of the defendant in error.

"2. The court had no jurisdiction to render said judgment.

"3. The court erred in overruling the demurrer of this plaintiff to said petition.

"4. The court erred in exercising jurisdiction of said cause after the same was removed to the circuit court of the United States within and for the district of Nebraska.

"5. The court erred in rendering a judgment by default against plaintiff in error while said cause was pending on removal proceedings in the circuit court of the United States.

"6. The court erred in assuming to determine whether said cause was properly removed under the acts of congress and assuming to withdraw said action from the proper circuit court of the United States."

It is first argued for plaintiff in error that as the jurisdiction of the state court in the cause ceased as soon as the application for removal was filed, it could not further proceed therein, and its subsequent acts were void. In section 2 of the act of March 3, 1887, as corrected in 1888 (see 25 U.S. Statutes at Large, p. 434, ch. 866), amendatory of the act of 1875, it is provided: "That any suit of 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." The act further provides that the application shall be by petition,...