Bradshaw v. Miners' Bank of Joplin

• Decision Date: 17 July 1897
• Docket Number: 390.
• Citation: 81 F. 902
• Parties: BRADSHAW et al. v. MINERS' BANK OF JOPLIN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

81 F. 902

BRADSHAW et al. v. MINERS' BANK OF JOPLIN et al.

No. 390.

United States Court of Appeals, Seventh Circuit.

July 17, 1897

This was a suit in equity to enjoin the prosecution of a creditors' bill filed by the Miners' Bank of Joplin to enforce collection of a judgment against the respondent Corwin C. Thompson. Demurrers were sustained to the original and amended and supplemental bills, and decree entered dismissing the suit as against the bank for want of equity. Complainants appeal.

In this case, now here the second time, the suit was brought by the appellants, Frank M. Bradshaw and George W. Henry, citizens of Illinois, against the Miners' Bank, a corporation of Missouri, the Illinois & Missouri Lead and Zinc Company, a corporation of Illinois, and Corwin C. Thompson, a citizen of Illinois. On the first appeal, which was from an order dissolving a temporary injunction, it was held that upon the facts stated in the bill the appellants were not entitled to relief. Bradshaw v. Bank, 46 U.S.App. 663, 23 C.C.A 578, and 77 F. 932. The substance of the original bill was that the appellants purchased certain property of the Illinois & Missouri Lead & Zinc Company, for which they executed their promissory notes in the aggregate amount of $4,050 to the Miners' Bank, which, it was averred, had no interest of its own in the notes, but was made payee at the request and solely for the benefit of the Illinois & Missouri Lead & Zinc Company; that at the same time Thompson executed to the Miners' Bank a separate writing, whereby he guarantied the payment of the notes; that on that guaranty the Miners' Bank had recovered judgment in the court below against Thompson for the full amount of the notes, and upon a creditors' bill in the same court showing execution upon the judgment returned nulla bona had procured the appointment of a receiver of Thompson's property that by reason of false representations of the character and condition of the property for which the notes were given the appellants had a legal defense to any action thereon that, pending the suit on the guaranty, and after plea of the general issue to the declaration, they informed Thompson and his attorney of the facts constituting their defense, and of the evidence obtainable to establish it, and offered to employ an attorney to represent their interest in the suit and to assist in making the defense; that the offer was declined, and that Thompson's attorney neglected to set up the defense by a special plea, and that when the cause was reached for trial neither Thompson nor his attorney appeared in court, and a verdict was taken, and the judgment rendered upon which the subsequent proceedings mentioned were had. The concluding averment was that, notwithstanding the negligence of Thompson, through his attorney, in failing to prepare to make a proper defense, the complainants felt in equity bound to protect Thompson from any loss or damage by reason of having executed the guaranty in their behalf, and that they were ready and willing to pay to the Illinois & Missouri Lead & Zinc Company, or to the Miners' Bank, as agent of said company, any amount which the court upon the hearing should find to be equitably due. After the cause had been remanded the appellants filed an amended and supplemental bill, whereby, after reiterating the averments of the original bill, ...