Dinan v. First Nat. Bank of Detroit, No. 8472.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSIMONS, HAMILTON and MARTIN, Circuit
Citation117 F.2d 459
PartiesDINAN et al. v. FIRST NAT. BANK OF DETROIT.
Decision Date10 February 1941
Docket NumberNo. 8472.

117 F.2d 459 (1941)

DINAN et al.
v.
FIRST NAT.
BANK OF DETROIT.

No. 8472.

Circuit Court of Appeals, Sixth Circuit.

February 10, 1941.


J. Owen Guiney, of Detroit, Mich. (Guiney & Guiney, Neill E. Graham, and John D. Sullivan, all of Detroit Mich., on the brief), for appellants.

Robert S. Marx and William C. Kelly, both of Cincinnati, Ohio, and Lawrence I. Levi and Frank M. Wiseman, both of Detroit, Mich., and Nichols, Wood, Marx & Ginter, of Cincinnati, Ohio, for appellee.

Before SIMONS, HAMILTON and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

The appeal is from a judgment dismissing the suit of the appellants for damages on account of the breach of an executory contract, and is against an insolvent national bank. It has so often been said that the National Banking Act 12 U.S.C.A. § 1 et seq., constitutes "by itself a complete system for the establishment and government of national banks," Cook County Nat'l Bank v. United States, 107 U.S. 445, 448, 2 S.Ct. 561, 564, 27 L.Ed. 537; Davis v. Elmira Savings Bank, 161 U.S. 275, 16 S.Ct. 502, 40 L.Ed. 700; Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694; Grindley v. First National Bank-Detroit, 6 Cir., 87 F.2d 110, and the Congress having conferred upon the District Courts of the United States original jurisdiction of suits for winding up the affairs of such banks, T. 28 U.S.C.A. § 41, Subd. (16), the question usually arises, in a suit against an insolvent bank, whether it is of that character. This becomes of

117 F.2d 460
importance, not only in determining the jurisdiction of the District Court, but also in determining the law to be applied

In July, 1923, the appellants made a written lease with the predecessor of the appellee for the rental of a branch bank building, for a twenty-five year term at a monthly rental of $800, payable in advance. Up to and including the installment due February 1, 1933, the rent was paid as agreed. On February 11, 1933, the bank was closed and its affairs placed in the hands of a conservator, later succeeded by a receiver. On April 26, the conservator disavowed all obligations under the terms, conditions, and covenants of the lease. The sole provision therein governing the rights of the lessors in the event of default gave them or their representatives the right to re-enter into and to repossess the premises, and to remove therefrom the tenants and other occupants. There was no stipulation in the lease for acceleration of rentals, indemnity or liquidated damages in the case of default by the lessee.

Though denying the right of the conservator to repudiate the lease, the appellants re-entered the premises and re-let them at a reduced rental with the asserted purpose of mitigating damages. Following the appointment of the receiver, proof of claim was filed with him in the sum of $148,000 for alleged anticipatory breach of the lease, the asserted damages being based upon the then present value of the difference between the total agreed rent for the unexpired term, and the fair rental value of the premises at the time of the breach. Upon rejection of the claim the present action was begun in the state court. The receiver, though not a party thereto, instituted removal proceedings and subsequently obtained a certified copy of the transcript of the record which he filed with the clerk of the District Court in Detroit. Later, being apprehensive that the appellants would proceed with their action, regardless of the steps taken to remove it, the receiver filed an ancillary equitable proceeding in the Federal Court for an injunction restraining them from proceeding with their state court suit. A permanent injunction followed. While some preliminary steps were taken to appeal from the decree, the appeal was abandoned. A motion to remand having been denied, the law case proceeded to hearing in the District Court with the result that a judgment of no cause of action was entered in favor of the defendant bank, and a motion for new trial was denied.

The error assigned to the denial by the court of the motion to remand is before us for consideration, notwithstanding the finality of the injunction decree resulting from the abandonment of the appeal. While the decree might have been urged by the defendant as a bar to the consideration of the issue in the present case, even though it involved a jurisdictional question, Ostrander-Seymour Co. v. G. R. Trust Co., 6 Cir., 50 F.2d 567; Baldwin v. Traveling Men's Ass'n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244, res judicata was not pleaded as an affirmative defense, and such definitive pleading is required by Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. We hold, nevertheless, that there was no error in denying the motion to remand. As hereinbefore indicated, the District Courts have jurisdiction of cases for winding up the affairs of any national bank. This is such a case. International Trust Co. v. Weeks, 203 U.S. 364, 367, 27 S.Ct. 69, 51 L.Ed. 224; In re Chetwood, 165 U.S. 443, 17 S.Ct. 385, 41 L.Ed. 782; Guarantee Co. of North Dakota v. Hanway, 8 Cir., 104 F. 369. Our decision in Connolly v. First Nat'l Bank-Detroit, 6 Cir., 86 F.2d 683, does not require a contrary result. It was based upon allegations of a declaration seeking but a money judgment against the defendant, which bore no analogy to a case for winding up the affairs of a bank. The action was against the bank and it was clear, from the averments of the declaration therein, that the transactions constituting the foundation for the suit occurred prior to its...

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12 practice notes
  • Dababneh v. F.D.I.C., No. 88-1272
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 27, 1992
    ...Inc. v. FDIC, 439 F.Supp. 828, 829-30 (E.D.La.1977), aff'd 575 F.2d 879 (5th Cir.1978). See also Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 461-63 (6th Cir.1941) (claims for future rent do not accrue prior to insolvency for purposes of § 194); First Nat'l Bank of Chicago v. First N......
  • Federal Deposit Ins. Corp. v. Grella, No. 485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 5, 1977
    ...national banks, Texas & Pac. Ry. v. Pottorff, 291 U.S. 245, 253, 54 S.Ct. 416, 78 L.Ed. 777 (1934); Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 461 (6th Cir. 1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942), under which the receiver has no more powers than th......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...Schram v. Perkins, D.C., 38 F. Supp. 404; cf. Armstrong v. Trautman, C.C., 36 F. 275; Dinan v. First National Bank of Detroit, 6 Cir., 117 F.2d 459; Pufahl, Receiver, v. Estate of Parks, 299 U. S. 217, 225, 57 S.Ct. 151, 81 L.Ed. 133. But this does not answer the question of whether this pa......
  • Resolution Trust Corp. v. CedarMinn Bldg. Ltd. Partnership, Nos. 91-1902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 27, 1992
    ...("The conservator ... may ... (k) ... repudiate any lease or contract he considers burdensome"); Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mi......
  • Request a trial to view additional results
12 cases
  • Dababneh v. F.D.I.C., No. 88-1272
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 27, 1992
    ...Inc. v. FDIC, 439 F.Supp. 828, 829-30 (E.D.La.1977), aff'd 575 F.2d 879 (5th Cir.1978). See also Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 461-63 (6th Cir.1941) (claims for future rent do not accrue prior to insolvency for purposes of § 194); First Nat'l Bank of Chicago v. First N......
  • Federal Deposit Ins. Corp. v. Grella, No. 485
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 5, 1977
    ...national banks, Texas & Pac. Ry. v. Pottorff, 291 U.S. 245, 253, 54 S.Ct. 416, 78 L.Ed. 777 (1934); Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 461 (6th Cir. 1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942), under which the receiver has no more powers than th......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...Schram v. Perkins, D.C., 38 F. Supp. 404; cf. Armstrong v. Trautman, C.C., 36 F. 275; Dinan v. First National Bank of Detroit, 6 Cir., 117 F.2d 459; Pufahl, Receiver, v. Estate of Parks, 299 U. S. 217, 225, 57 S.Ct. 151, 81 L.Ed. 133. But this does not answer the question of whether this pa......
  • Resolution Trust Corp. v. CedarMinn Bldg. Ltd. Partnership, Nos. 91-1902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 27, 1992
    ...("The conservator ... may ... (k) ... repudiate any lease or contract he considers burdensome"); Dinan v. First Nat'l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mi......
  • Request a trial to view additional results

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