Bosler v. United States

• Decision Date: 15 May 1928
• Docket Number: No. 7806.,7806.
• Citation: 26 F.2d 4
• Parties: BOSLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 4 (1928)

BOSLER et al. v. UNITED STATES.

No. 7806.

Circuit Court of Appeals, Eighth Circuit.

April 9, 1928.

Rehearing Denied May 15, 1928.

H. M. Cooley, Arthur L. Adams, and Robert E. Fuhr, all of Jonesboro, Ark., for plaintiffs in error.

Charles F. Cole, U. S. Atty., of Little Rock, Ark., and A. P. Patton and Charles D. Frierson, both of Jonesboro, Ark., for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MUNGER, District Judge.

BOOTH, Circuit Judge.

This is a writ of error to a judgment in an action by the United States on a joint and several bond executed by the First National Bank of Jonesboro, Ark., as principal, in connection with its designation as a depository in bankruptcy, and by the several defendants as sureties. The United States was the obligee in the bond. The bond was given pursuant to section 61 of the Bankruptcy Act (11 USCA § 101); and one of its conditions was that the bank should well and truly account for and pay over all moneys deposited with it as such depository.

The complaint alleged the making of the bond and its approval by the court, and that a copy of the bond was attached to the complaint and made a part thereof. The complaint further alleged as follows:

"That subsequent to the execution of said bond, and, while same was in full force and effect, moneys belonging to a large number of estates in bankruptcy were deposited in said bank, and withdrawn therefrom from time to time until on or about the 1st day of June, 1926, on which said date said bank was declared to be insolvent by the Comptroller of the Currency and a receiver appointed therefor by said Comptroller, which said receiver now has charge of the assets of said bank. That at the time of the appointment of said receiver, as aforesaid, there was on deposit in said bank the aggregate sum of $15,426.90 of bankruptcy funds, belonging to thirty-two separate estates in bankruptcy, a list of said estates, with name of the trustee thereof and the amount due each estate attached hereto as Exhibit B to the complaint, and made a part hereof, and reference is made thereto for full particulars. That on the said 1st day of June, 1926, demand was made upon said bank and the receiver thereof for payment of the said several amounts, but same has been refused, and by reason thereof the bond so executed by the defendants has been breached.

"The premises seen, plaintiff prays judgment against the defendants and each of them for the full sum of $15,426.90 for the use and benefit of said several estates, together with interest thereon at 6 per cent. from June 1st, 1926, the date of said demand, for costs and all proper relief."

Exhibit B, attached to the complaint, was a schedule containing the names of the bankrupt estates, the name of the trustee in each estate, and the amount of money deposited belonging to each estate.

A demurrer was interposed to the complaint on four grounds: (1) That the complaint disclosed that the United States had no active interest in the subject-matter of the litigation, and therefore there was a defect of parties plaintiff. (2) That the complaint disclosed that the United States was not empowered to represent the various claimants alleged to have claims against the depository bond; said bond being executed under section 61 of the Bankruptcy Act. (3) That the action could not be brought by the United States, but only in the name of the United States as obligee and nominal plaintiff by one or more of the depositors in behalf and for use of all of them. (4) That a court of law was without jurisdiction to entertain the cause; the sole remedy being in equity.

The demurrer was overruled, and, the defendants declining to plead further, it was ordered that the cause be submitted upon the complaint and exhibits attached. Judgment was thereafter entered that plaintiff recover of defendants jointly and severally the sum of $15,426.90, with interest from the date of filing the complaint. The judgment then proceeds: "And it is further ordered that said sum be recovered for the use and benefit of the estates in bankruptcy named in said complaint, and herein specifically set out." Then followed the same list as contained in Exhibit B.

The assignments of error raise the following questions:

(1) Whether the complaint sufficiently disclosed the names of the various parties interested in the subject-matter.

(2) Whether the action could be maintained by the United States in its own name.

(3) Whether the action at law could be maintained as distinguished from a suit in equity.

As to the first question, the position of plaintiff in error is that the complaint itself gives no information as to the identity of the several parties who are said to be entitled in the aggregate to the $15,426.90; that it is only by way of the Exhibit B, attached to the complaint, that the identity of these parties and the several amounts due them respectively can be ascertained; that under the decisions of the Supreme Court of Arkansas such resort to Exhibit B is not allowable.

The question of pleading is to be determined by the laws of the state. Walker v. Traylor Co., 12 F.(2d) 382 (C. C. A. 8); Cold Blast Tr. Co. v. K. C. Bolt & Nut Co., 114 F. 77, 82, 57 L. R. A. 696 (C. C. A. 8); Rush v. Newman, 58 F. 158 (C. C. A. 8). See Coffey v. United States, 117 U. S. 233, 6 S. Ct. 717, 29 L. Ed. 890. We turn, therefore, to the statutes and the decisions of the Supreme Court of the state of Arkansas. Section 138 of the Arkansas Civil Code, found in Crawford & Moses' Digest of the Statutes of Arkansas, 1921 (section 1222), reads as follows:

"Copy of Instrument for Payment of Money. — In an action or defense founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims."

Section 148 of the same Code, found in the same compilation (section 1223), reads as follows:

"Copy of Deed or Other Writing. — If either party shall rely upon any deed or other writing, he shall file with his pleading the original deed or writing, if in his power, or a copy thereof. If he cannot procure such deed or writing or a copy thereof, he shall so state in his pleading, together with the reasons therefor, and if such reasons are sufficient, he may file the best evidence of the contents of such deed or writing in his power. Original deeds and other writings, filed by either party, as above provided, shall remain on file for the inspection of the other party until allowed by the court to be withdrawn; and in such case copies, attested by the clerk, shall be substituted by the parties withdrawing the original. Provided, that in actions on contract for the recovery of money only it shall not be necessary to file with the complaint the original or a copy of the instrument sued upon, but in such case the substance thereof shall be stated in clear and concise language and without unnecessary repetition."

These sections of the Code have received construction by the Supreme Court of Arkansas in a number of cases. In the early case of Abbott v. Rowan, 33 Ark. 593, the court in its opinion said (page 596):

"When the action is not founded upon the instrument, as evidence of indebtedness, but when the instrument is merely relied upon, it must still be filed; but the plaintiff has no right, by reference to make it a part of the pleading, and it cannot be noticed on demurrer any further than to explain allegations — not to supply them, nor should it be noticed, on demurrer, to contradict them even, since, in such cases, the instruments are essentially evidence and no part of the pleading."

From this statement it is seen that in actions not founded upon an instrument as evidence of indebtedness, but where an instrument or other writing is relied upon, such instrument or writing may nevertheless be attached to the complaint or other pleading filed. Its use may be expressed in the following rules: (1) It may not be used to supply allegations for the complaint or other pleading in order to render it good; (2) it may not be used to deny or control the allegations of the complaint or other pleading in order to render it bad; (3) it may be used to explain the allegations of the complaint or other pleading. Percifull v. Platt, 36 Ark. 456, and Sorrels v. McHenry, 38 Ark. 127, cited by plaintiff in error, are instances under rule 1. Euper v. State, 85 Ark. 223, 107 S. W. 179, and Central Kan. Mill. Co. v. Patterson, 161 Ark. 480, 256 S. W. 847, also cited by plaintiff in error, are instances under rule 2. Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639, Lindsey v. Bloodworth, 97 Ark. 541, 134 S. W. 959, and Louisiana N. W. R. Co. v. McMorella, 170 Ark. 921, 282 S. W. 6, cited by defendant in error, are instances under rule 3.

Bouldin v. Jennings, supra, was an action to recover possession of land. The complaint set up title in plaintiff's ancestor and the heirship of plaintiff. The complaint further alleged that a petition had been filed in the probate court by the administrator of the deceased to sell the land, but that said petition contained a wrong description of the land; that an order had been made by the probate court authorizing a sale, but that it also contained the wrong description of the land; that the report of the sale and the order confirming it also contained the wrong description of the land; that a petition had been filed by the purchaser (the defendant) asking for correction of the description; and that an order of the probate court had been filed correcting the description. Copies of these various orders were attached to the complaint as exhibits. The answer admitted these allegations of the complaint, and alleged that plaintiff had sued the administrator for the purchase money and was thereby estopped. Plaintiff demurred to the answer. The demurrer was overruled,...