Davis v. Mills
Decision Date | 22 January 1900 |
Docket Number | 457. |
Citation | 99 F. 39 |
Court | U.S. District Court — District of Connecticut |
Parties | DAVIS v. MILLS et al. |
John A Shelton, for plaintiff.
Gross Hyde & Shipman, for defendants.
Demurrer to plea to jurisdiction in action at law. The complaint alleges that while defendants herein were trustees of the Obelisk Mining & Concentrating Company, a corporation organized under the laws of Montana, it became indebted to the assignors of sundry claims now held by plaintiff, and failed to file the report of its condition as required by law, and claims that, it being insolvent, defendants are jointly and severally liable for the amount of said claims.
The statute of Montana provides as follows:
'Comp. Laws, p. 728, Sec. 460.
The defendants have pleaded to the jurisdiction on the following grounds, namely:
Counsel for defendants, in support of the first point, cited section 629, Rev.St. 1878, as amended by the act of August 13, 1888 (25 Stat. 433, c. 866), which provides that the circuit court shall not 'have cognizance of any suit * * * to recover the contents of any promissory note or other chose in action in favor of any assignee, * * * unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been made. ' It has been repeatedly held that the restrictions as to amounts and as to suits by assignees are distinct and independent in language and purpose; that the intent of all the legislation since the enactment of the judiciary act of 1789 has been, by the provision as to amounts, merely to prevent the dockets of the federal courts from being crowded with small cases, and, by the provision as to assigned choses in action, to prevent the creation of jurisdiction by the transfer of claims held by a citizen of the same state with the debtor to a citizen of another state. Stanley v. Board (C.C.) 15 F. 483; Hammond v. Cleaveland (C.C.) 23 F. 1; Bernheim v. Birnbaum (C.C.) 30 F. 885; Chase v. Roller-Mills Co. (C.C.) 56 F. 625.
In Bowden v. Burnham, 8 C.C.A. 248, 59 F. 752, Judge Caldwell, delivering the opinion of the court of appeals, said:
The complaint alleges that the assigned claims originally belonged to citizen of the state of Montana, and they together aggregate more than $2,000.
The second point, namely, misjoinder, was disposed of by Judge Shipman on a prior hearing, on motion for leave to amend the complaint by the addition of a third count. 83 F. 982. Judge Shipman was of the opinion that 'these statutory claims arose out of the same transaction,-- that is the same neglect,-- and that, being owned by one person, they can be proved in one complaint.'
The third point raises the question whether said statute is penal, so as not to be enforceable outside the state of Montana. It is unnecessary now to consider what the law may formerly have been in the federal courts or what may now be the law in the state courts. In Huntington v Attrill, 146 U.S. 676, 12 Sup.Ct. 231, 36 L.Ed. 1131, the supreme court of the United States says that as such a statute 'See, also, Whitman v. Bank, 28 C.C.A. 404, 83 F. 288. Counsel for defendants contends that the supreme court of Connecticut decided in Mitchell v. Hotchkiss, 48 Conn. 1, that such a cause of action was penal, and that this court is concluded by said decision. But that case only holds that the cause of action does not survive against the administrator, and that decision is not necessarily inconsistent with the opinion of the court in...
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