City of St. Anthony v. Mason
| Decision Date | 01 November 1927 |
| Docket Number | No. 655.,655. |
| Citation | 22 F.2d 306 |
| Parties | CITY OF ST. ANTHONY v. MASON et al. |
| Court | U.S. District Court — District of Idaho |
H. G. Harris and F. L. Soule, both of St. Anthony, Idaho, for plaintiff.
Holden & Coffin, of Pocatello, Idaho, for defendant Ætna Casualty & Surety Co.
This suit was filed in the state court, where a petition for removal to this court was granted. The jurisdiction of this court is challenged by a motion to remand, upon the ground that the complaint does not disclose a separable controversy, nor is there a diversity of citizenship as between the plaintiff and all of the defendants.
The facts alleged, which appear on the face of the complaint and not disputed, so far as necessary to be stated on this motion, are that the plaintiff, a municipal corporation of the state, brings this suit against the defendant Mason, a resident of the state, and the defendant Ætna Casualty & Surety Company, upon a bond furnished by the defendants to the city, in which the defendant Mason, as principal, and the surety company, as surety, jointly and severally obligated themselves for the faithful performance of the official duties of Mason as treasurer of the city, and to account for any pay over to the city all moneys or other property that may come into his hands as such treasurer. While this bond was in force, the First National Bank of St. Anthony, which had not been designated as a depository of city funds, and after the treasurer had deposited certain moneys of the city therein, suspended payment and closed its doors because of its insolvency.
The charge is made that such deposit was unlawful, and made in violation of the official duties of the treasurer. The bond involved here is an official one of the treasurer and the Ætna Surety Company is the surety thereon. In it they both undertook and agreed to account for and pay to the city all moneys coming into the custody of its treasurer. It was a joint and several undertaking, and both are liable to the city thereon by its terms and the statute under which it was given. The surety company cannot alone be held responsible on the bond, unless the treasurer is liable also. Cochran v. Montgomery County, 199 U. S. 260, 26 S. Ct. 58, 50 L. Ed. 182.
There is here but a single controversy, and that is the recovery of city funds, which both the treasurer and the surety have, by the terms of the bond, agreed to account for at all times. That is the main purpose of the action. The subject-matter of the suit is the same as to both of the defendants, as only one debt is involved, and the cause of action is one and the same. The city had a right to proceed against either of the defendants by a separate suit, or join them in one action. If the defendant surety company has a right of removal, then the city may be compelled to divide...
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