O'Connell v. Reed, 210.

• Decision Date: 15 May 1893
• Docket Number: 210.
• Citation: 56 F. 531
• Parties: O'CONNELL v. REED et al.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 531

O'CONNELL v. REED et al.

No. 210.

United States Court of Appeals, Eighth Circuit.

May 15, 1893

B. P Waggener, for plaintiff in error.

W. H Rossington, (Charles Blood Smith and Everett J. Dallas, on the brief,) for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge.

On December 4, 1891, Simon Reed and Thomas Murdoch, the defendants in error and the plaintiffs below, who were citizens of Illinois, brought an action in the circuit court for the district of Kansas against T. J. O'Connell, the plaintiff in error, who was a citizen of Kansas, for $2,239.70, for goods sold and delivered. Their petition contained two counts,--one for $338.71, then due, and the other for $1,900.99, not due. The defendant demurred to the petition on the grounds (1) that the court had no jurisdiction of the defendant, or of the subject of the action; (2) that the plaintiffs had no legal capacity to sue (3) that several causes of action were improperly united; and (4) that the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and this ruling is the supposed error complained of. Judgment was entered in favor of the plaintiffs, and the defendant brought this writ of error to reverse it.

The only question presented by this record is whether two causes of action,--one for a debt due, and the other for a debt not due,--and both arising out of the same running account for goods sold, were improperly united in this petition. The Code of Civil Procedure of the state of Kansas provides that in a civil action for the recovery of money the plaintiff, at or after the commencement of the action, may have an attachment against the property of the defendant on several grounds, one of which is, when the defendant 'has assigned, removed or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud, hinder, or delay his creditors,' (section 190,) and that an order of attachment shall be made by the clerk of the court in which the action is brought, when the proper affidavit is filed, (section 191.) On the day this action was commenced the plaintiffs caused an order of attachment to be issued by the clerk, upon the grounds stated in the quotation marks above, on the debt of $338.71, that was due. The same Code provides that 'where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or conveyance or disposition of his property, with such fraudulent intent, or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts, a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor,' (section 230;) that the attachment authorized by section 230 may be granted by the court or judge upon the filing of a proper affidavit, (section 231;) that in all such actions an application for an attachment must be made; that the action shall be dismissed if the court or judge refuses to grant it, (section 232;) and that the plaintiff in such an action shall not have judgment on his claim before it is due, but the proceedings upon the attachment may be conducted without delay, (section 235.) On the same day that this action was commenced the plaintiffs filed the proper affidavit, obtained from the judge an order for an attachment, and caused it to issue, on the claim of $1,900.99, that was not due.

The Kansas Code also provides that 'the plaintiff may unite several causes of action in the same petition, * * * where they all arise out of either one of the following classes: First, the same transaction, or transactions connected with the same subject of action; second, contracts express or implied, * * *' (section 83;) that the defendant may demur to the petition when it appears on its face that several causes of action are improperly joined, (section 89;) and that, 'when a demurrer is sustained on the ground of misjoinder of several causes of action, the court, on motion of the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined, and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service,' (section 92.)

In Wurlitzer v. Suppe, 38 Kan. 31, 15 P. 863, (decided in 1887,) the supreme court of Kansas sustained a demurrer to a petition, and held that a count for moneys due and one for moneys not due, under the statutes above referred to, were improperly joined in one petition, on the ground that the claim for moneys not due was not a cause of action, although the statute authorized the claimant to bring and maintain an action upon it. The contention of counsel for the defendant is that this decision is a construction of the statutes of Kansas by the highest judicial tribunal of that state; that the federal courts are bound to follow this decision, by the rule that they will adopt the construction of state statutes announced by the highest judicial tribunal of that state, and by the act of congress conforming the pleadings and practice in the circuit and district courts, in actions at law, to those of the states in which they are established; that the court below should therefore have sustained the demurrer, separated the two counts of the petition into two separate actions, according to the statutes and practice in Kansas, and then, as the amount in dispute in each would thus have become less than the $2,000 required to give jurisdiction to the circuit court, that that court should have dismissed both actions for want of jurisdiction.

By the act of congress of March 3, 1887, and the act of August 13, 1888, for its correction, (24 Stat. 552, c. 373; 25 Stat. 434, c. 866,) jurisdiction was conferred on the circuit courts of the United States in any civil suit in which a controversy arises between citizens of different states, and the amount in dispute exceeds $2,000, exclusive of interest and costs. When this action was commenced the amount in dispute therein was $2,239.70, and the controversy concerning this amount had arisen between citizens of different states. The circuit court then had jurisdiction of this action. The jurisdiction of that court had been defined and limited by acts of congress, and could neither be restricted nor enlarged by the statutes of a state. Toland v. Sprague, 12 Pet. 300, 328; Cowless v. Mercer Co., 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps v. Oaks, 117 U.S. 236, 239, 6 S.Ct. 714. If the state of Kansas had enacted a statute that no action for a larger amount than $1,500 should ever be brought in that state, but that a claimant might bring a separate action for each $1,500, or part thereof, that was owing him, such a statute would not have affected the jurisdiction of the circuit court to determine controversies between citizens of different states, involving larger amounts. Are the federal courts bound to follow the decision of a supreme court of a state giving a construction to state statutes, and establishing a practice, which compels the separation of this action, of which the circuit court now has jurisdiction, into two separate actions, of which it will not have jurisdiction?

It may be conceded that it is the settled rule of the federal courts to adopt the construction given by the highest judicial tribunal of a state to its local statutes involving rules of property, and to its state constitution and tax or revenue laws, where that construction violates no provision of the federal constitution, or of the federal laws. All the authorities cited by counsel for the defendant, with the exception of Glenn v. Summer, 132 U.S. 156, 10 S.Ct. 41, and People's Bank v. Batchelder Egg-Case Co., 4 U.S. App. 603, 609, 2 C. C. A. 126, 51 F. 130, only illustrate this principle. Thus, in Nichols v. Levy, 5 Wall. 433, 444, where the supreme court of Tennessee had construed a statute of that state to embrace certain trusts in real estate, and to exempt the land in dispute from liability to judgment creditors, the supreme court adopted its construction with the remark: 'Being a local statute, and involving a rule of real property, we adopt the construction which has been given to it by the highest judicial tribunal of the state.' And in Nesmith v. Sheldon, 7 How. 812, where, under a provision of the constitution of Michigan prohibiting its legislature from 'passing any act of incorporation, unless with the assent of at least two-thirds of each house,' the supreme court of that state had held that two-thirds of each house must sanction and approve each individual charter, the supreme court promptly adopted this construction. These two cases fairly illustrate this class of authorities, and they are far from holding that the federal courts are bound to follow any construction of a statute or any practice established by a state court that would affect the jurisdiction of their courts, or hinder or incumber the administration of the law in any of their tribunals.

The act of congress of June 1, 1872, section 5, (17 Stat. 197, c 255; Rev. St. § 914,) provides that 'the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in ...