Burrows v. Niblack

• Citation: 84 F. 111
• Decision Date: 03 January 1898
• Docket Number: 381.
• Parties: BURROWS v. NIBLACK.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

84 F. 111

BURROWS v. NIBLACK.

No. 381.

United States Court of Appeals, Seventh Circuit.

January 3, 1898

Of the five counts in the declaration in this case two are common counts in assumpsit and three are special. The averments of two of the latter are to the effect that on March 10, 1893 the plaintiff in error, William F. Burrows, sold, and of the third that he surrendered, to the Chemical National Bank of Chicago, 100 shares, which he owned, of the capital stock of that bank for the sum of $10,000, which sum, upon his then and there delivering to the bank the certificates of stock was paid to him by the bank, which was represented in the transaction by its president; that on the ensuing May 8 1893, the bank having become insolvent, John P. Hopkins was appointed receiver by the comptroller of the currency; that on January 9, 1894, Hopkins having resigned, Eli C Tourtelot, Jr., who brought the suit, was appointed in Hopkins' stead, and, he having resigned pending the action, William C. Niblack, the defendant in error, was appointed his successor, and by order of the court substituted as plaintiff in the case. It is further alleged, in the first of the special counts, that 'the sale and transfer of the stock to the bank were not made to prevent loss upon a debt previously contracted in good faith'; in the second, that the sale and transfer were 'not necessary to prevent loss upon a debt previously contracted in good faith'; and in the third, that by means of the transaction the capital stock of the bank was reduced by the sum of $10,000. In each of these counts it is charged that the sale and purchase or surrender of the stock were contrary to the statute in such cases provided. Docket entries show that a jury was waived by a stipulation in writing, and the issues submitted to the court, which made a general finding for the plaintiff, and 'from the evidence, both oral and documentary,' found the sum of $11,926.66 to be due the plaintiff from the defendant; that thereupon the defendant interposed a motion in arrest of judgment, which the court overruled, and gave judgment upon the finding. A bill of exceptions in the record shows that the cause was submitted to the court upon an 'agreed statement of facts,' corresponding, in substance, with the averments of the special counts of the declaration which allege a sale of the stock, and that thereupon, 'upon full consideration of the case stated,' the court found the facts to be true as stated, and that the sale of the stock to the bank, and the payment therefor, were in contravention of section 5201 and 5204 of the Revised Statutes of the United States, and therefore illegal, null, and void, and the plaintiff, consequently, entitled to recover of the defendant the sum paid, with interest. The grounds stated in the motion for arrest of the judgment were, in substance: First, that the declaration is defective; second, that the finding was a general one upon the whole declaration, and the special counts defective; third, that upon the evidence adduced no judgment can be sustained on the common counts, and that the special counts are insufficient. The assignment of errors contains three specifications: First, the court erred in finding for the plaintiff and against the defendant; second, the court erred in overruling defendant's motion in arrest of judgment; third, the court erred in entering judgment in favor of the plaintiff and against the defendant.

Mason B. Loomis and Albert H. Veeder, for plaintiff in error.

James W. Duncan and Hiram T. Gilbert, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge, after making the foregoing statement, .

By statute in Illinois, a judgment will not be arrested because of a defective count in a declaration which contains a good count. Iowa State Traveling Men's Ass'n v Moore's Adm'rs, 34 U.S.App. 670, 19 C.C.A. 662, and 73 F. 750; 2 Starr & C.Ann.St. § 58, c.110. The common counts of the declaration in this case being undeniably good, the first and second grounds of the motion in arrest of judgment were necessarily without merit, and the third ground is unavailing 'because a motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is not a part of the record for this purpose. ' Bond v. Dustin, 112 U.S. 604, 608, 5 Sup.Ct. 296. This disposes of the second specification of error, and, if the judgment is to be treated as one rendered upon a general finding by the court, and not 'upon an agreed statement of facts or case stated,' the first and third specifications also present no question. The decisions to that effect are numerous. See Bond v. Dustin, supra; Martinton v. Fairbanks, 112 U.S. 671, 5 Sup.Ct. 321; Boardman v. Toffey, 117 U.S. 272, 6 Sup.Ct. 734; Jenks' Adm'r v. Stapp, 9 U.S.App. 34, 3 C.C.A. 244, and 52 F. 641; Skinner v. Franklin Co., 9 U.S.App. 676, 6 C.C.A. 118, and 56 F. 783; Distilling & Cattle-Feeding Co. v. Gottschalk Co., 24 U.S.App. 638, 13 C.C.A. 618, and 66 F. 609; Phipps v. Harding, 34 U.S.App. 148, 17 C.C.A. 203, and 70 F. 468; Woodbury v. City of Shawneetown, 34 U.S.App. 655, 20 C.C.A. 401, and 74 F. 205; Seymour v. White Co., 34 U.S.App. 658, 20 C.C.A. 402, and 74 F. 207; Fourth Nat. Bank of St. Louis v. City of Belleville (decided Nov. 18,...