Guarantee Co. Of North Am. v. First Nat. Bank Of Lynchburg

• Decision Date: 20 January 1898
• Citation: 28 S.E. 909,95 Va. 480
• Parties: GUARANTEE CO. OF NORTH AMERICA v. FIRST NAT. BANK OF LYNCHBURG.
• Court: Virginia Supreme Court

28 S.E. 909

95 Va. 480

GUARANTEE CO. OF NORTH AMERICA

v.FIRST NAT. BANK OF LYNCHBURG.

Supreme Court of Appeals of Virginia.

Jan. 20, 1898.

Removal, of Causes—Citizenship—Alienage— Convicts—Official Bonds—Foreign Corporations — Attachment—Return—Pleading—Jurisdiction — Abatement — Duplicity—Amendments—Evidence—Opinions.

1. Where a petition for the removal of a cause from a state court to a federal court on the ground of diversity of citizenship is presented by only one of two defendants who are sued jointly on a single cause of action, it should not be allowed, unless the case presents a separable controversy, and not then where the sole petitioner is an alien.

2. Diversity of residence does not give a right to have a cause removed from a state court to a federal court, under the statute authorizing a removal on the ground of diversity of citizenship.

3. A penitentiary where a defendant is serving a term of imprisonment, his home being in another state, is not his residence, as a change of residence can be effected only by voluntary act.

4. Where one of two defendants is a citizen of the same state as plaintiff, the cause will not be removed, on the ground of diversity of citizenship, from the state court to a federal court.

5. A prisoner confined in a penitentiary may be sued at common law.

6. An allegation that defendant corporationwas a citizen and subject of the dominion of Canada, without negativing its citizenship in plaintiff's state, is insufficient to ground a removal on the ground of diverse citizenship.

7. A plea to the jurisdiction, in a transitory action, which omits the prayer for judgment, and the place where the action arose, and fails to show what court has jurisdiction of the cause of action, so as to give plaintiff a better writ, is bad.

8. A plea in abatement which presented two defenses, either of which, if true, would necessitate a finding in favor of defendant, is bad for duplicity.

9. Under Code, § 3260, providing that, when a declaration shows on its face proper matter for the jurisdiction of the court, the question of want of jurisdiction must be raised by a plea in abatement, such a question cannot be raised by a motion to dismiss the action, and strike it from the docket.

10. It need not be shown by a sheriffs return of a writ of attachment that service was obtained in his bailiwick, where he has no authority to execute it outside of his bailiwick, as the presumption is that he executed it legally.

11. Although funds of a foreign corporation held by the state treasurer may not be subject to attachment, effects of the company held by, or debts due the company from, a city of the state in which the corporation has been doing business, are liable to attachment.

12. After a demurrer has been sustained to a declaration which states a cause of action, the court may allow the declaration to be amended so as to correct defects in the statement.

13. In an action against a principal and his surety on an official bond, the declaration set forth the bond, its conditions, and the undertaking of the surety, and alleged as a breach the fraudulent acts of the principal, the loss, and the amount thereof sustained by plaintiff, and its right to demand payment of the bond, and the nonpayment thereof. Held, that the declaration stated a cause of action.

14. It is not error to exclude a plea which presents a defense which may be made under another plea already filed.

15. In an action on a bank teller's bond for losses sustained by the bank, a plea set up that the bank induced defendant surety to execute the bond by false representations that the teller never was in arrears or default to the bank, and that his books and accounts had been examined a short time before, and found to be correct. Held, that such a plea was allowed under Code, § 3299, enabling fraud in the procurement of a sealed contract to be set up as a defense, and that it constituted a valid defense, whether or not the hank believed the representations to be true when it made them.

16. It was not error to allow a ledger, not admitted in evidence, to he referred to and compared with other reports during the trial, where there was no objection raised.

17. A hypothetical question calling for an opinion which the jury can draw from the facts is properly excluded.

Error to circuit court of city of Lynchburg.

Action by the First National Bank of Lynchburg against the Guarantee Company of North America and Walker G. Hamner. From a judgment in favor of plaintiff, defendant company brings error. Reversed.

John L. Lee and Caskie & Coleman, for plaintiff in error.

John H. Lewis and Blackford, Horsley & Blackford, for defendant in error.

RIELY, J. The first assignment of error relates to the refusal of the court below to re move the case to the circuit court of the United States for the Western district of Virginia.

The suit was instituted by the First National Bank of Lynchburg, on the official bond of Walker G. Hamner, its teller, and the Guarantee Company of North America, his surety, to recover the amount of his defalcation to the bank.

The plaintiff is a citizen and resident of the state of Virginia. Hamner was also a citizen and resident of the said state, but, at the time of the institution of the suit, he was serving a penal term of seven years in the United States penitentiary at the city of Brooklyn, in the state of New York; and the guarantee company was and is a foreign corporation, chartered by and existing under the laws of the dominion of Canada, being a citizen and subject thereof, and having its chief office and place of business in the city of Montreal, In that country.

The petition for the removal of the case was presented by the guarantee company alone, and alleged that the petitioner was a citizen and subject of the dominion of Canada, and that its co-defendant, Hamner, was a resident of the state of New York.

It is essential to the right of removal of a case from a state court to a federal court that the parties on each side shall be citizens of different states; and the petition for removal, unless the case presents a separable controversy, must be by ell the defendants. Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. 426. An alien sued with a citizen in a court of the latter's state, even where the controversy is separable, cannot remove the case to a federal court on his sole petition. King v. Cornell, 106 U. S. 395, 1 Sup. Ct. 312.

For the petition of removal to prevail In the case at bar, Hamner must have been a citizen of some other state than Virginia, and have united with the guarantee company in asking for the removal. But being a citizen of Virginia, of the same state with the plaintiff, and sued along with the guarantee company in a court of the said state, it is very clear that the case was not one for removal, under the constitution and laws of the United States, to a federal court, unless the fact that Hamner was serving a term in the penitentiary in the state of New York made an exception to the law on the subject. Did this fact give the alien corporation the right to remove the case upon its sole petition?

It was contended that, because Hamner was serving a penal term in the penitentiary in the state of New York, It followed that he was a resident of that state, and not of Virginia, the state of which the plaintiff was a citizen, and that, therefore, the plaintiff in error had the right to remove the case. This position is untenable. The penitentiary is not a place of residence, but of confinement as a punishment for the commission of crime. Moreover, residence is a matter of intention, and is determined by every man for himself. The residence of Hamner, at the time of his conviction, was in Lynchburg, and his family have continued to reside there. His compulsory removal to the penitentiary of another state could not operate to change his place of residence. That could only be effected by his voluntary act, and not involuntarily by the strong arm of the law as a punishment for a felony of which he had been convicted. But even if this had made Hamner a resident of the state of New York, which was not the case, still the right to remove the suit would not have existed unless it also made him a citizen as well as a resident, the right of removal being made to depend, not on residence, but citizenship; and the petition of the guarantee company would not then have presented a case for removal, unless Hamner had united In it. Hamner, however, was a citizen of Virginia when convicted, and his citizenship was not changed by reason of his conviction and confinement in a penitentiary in another state.

It was also earnestly and ably argued by the learned counsel for the plaintiff in error that Hamner, by reason of his conviction and servitude in the penitentiary, was civili-ter mortuus, and could not be sued, and that there was therefore but one real defendant, the guarantee company, which fact entitled it to remove the case on its sole petition.

It is provided by statute that when a person, other than a married woman having no separate estate, is sentenced to confinement in the penitentiary of the state by a court thereof for more than one year, a committee of his estate may be appointed, who shall have charge thereof until the convict is discharged, and who may sue and be sued in respect to debts due to or by such convict. Code, §§ 4115, 4116. It was contended by counsel for the defendant in error that, as Hamner was not confined in the penitentiary of this state under sentence by a court thereof, the provisions of the statute were not applicable to him, but that his liability to suit depended upon the principles of the common law; and this seemed to be conceded by the counsel for the plaintiff in error.

At common law a person convicted of a felony did not possess immunity from suit. He himself was disabled from suing, but not from being sued. Banyster v. Trussel, Cro. Eliz. 516; Ramsden v. Mackdonald, 1 Wils. 217; Platner...