Kissick Const. Co. v. First Nat. Bank of Wahoo

• Decision Date: 08 August 1942
• Docket Number: No. 75.,75.
• Citation: 46 F. Supp. 869
• Parties: KISSICK CONST. CO. v. FIRST NAT. BANK OF WAHOO.
• Court: U.S. District Court — District of Nebraska

46 F. Supp. 869

KISSICK CONST. CO. v. FIRST NAT. BANK OF WAHOO.

No. 75.

District Court, D. Nebraska, Lincoln Division.

August 8, 1942.

Perry, Van Pelt & Marti and J. P. O'Gara, both of Lincoln, Neb., for plaintiff.

Good & Simons, of Lincoln, Neb., and B. E. Hendricks, of Wahoo, Neb., for defendant.

DELEHANT, District Judge.

Motion for summary judgment, Rule 56, Federal Rules of Procedure in civil cases, 28 U.S.C.A. following section 723c.

Jurisdiction, if well grounded, rests on diversity of citizenship, coupled with the existence of a controversy involving the statutory amount. 28 U.S.C.A. § 41 (1) (b).

The amended complaint, hereinafter referred to as the complaint, sets out eight alleged causes of action. Under each cause of action the plaintiff claims, as against the defendant, the equal one-half of the proceeds of a warrant of the State of Nebraska, issued in favor of Central Bridge & Construction Company and the plaintiff, delivered by the state to Central Bridge & Construction Company, and by it deposited in the defendant's bank to the credit of Central Bridge & Construction Company, and thereafter through banking channels, presented to and paid by the state. The plaintiff claims in each instance to have been the owner, and entitled to one-half of the proceeds of the warrant and that its rights were violated by the acceptance of the warrant without valid endorsement by or in behalf of the plaintiff. In each of the first four causes of action it is alleged that the draft was wholly unendorsed in the name of the plaintiff; and in the remaining four causes of action, it is claimed that an endorsement in the name of the plaintiff was made by one having no authority in that behalf.

After filing its answer, the defendant filed its motion for summary judgment, (a), as to the second cause of action, because recovery under it is barred by the statute of limitations; (b), as to the complaint as a whole because with the second cause of action eliminated the amount in controversy is less than $3,000.00; and (c), as to the complaint as a whole because there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. These specifications will be considered separately and very briefly.

(a) The bar of the Statute of Limitations in respect of the second cause of action is not manifest upon the face of the petition but is made to appear by two undisputed affidavits in support of the motion, wherefrom it appears, that, at the very latest the warrant there involved was fully and finally paid by the issuing state, and any alleged conversion completed on September 19, 1936. No charge of fraud, deceit or concealment is directed at the defendant which might operate to defer the commencement of the period of limitations, and the defendant's alleged tardy discovery of the conversion is immaterial. Therefore, an action founded upon the conversion of that warrant filed on or after September 20, 1940, would be vulnerable to the plea of the statute whether the period be determined by Section 20-207 or by Section 20-212 C.S.Neb. It ought to be added that, without expressly conceding the defendant's contention respecting the statute, the plaintiff has not resisted it either in oral argument or in written briefs. Therefore, as to the second cause of action of the complaint, the action having been filed on September 26, 1940, the defendant's motion for summary judgment will be sustained, and judgment of dismissal entered thereon, with exception to the plaintiff.

(b). But the court can not follow the defendant on the next step to which it is invited; for it considers that its jurisdiction remains unimpaired by the present dismissal of the second cause of action of the complaint, although the aggregate amount recoverable under the remaining seven causes of action is slightly less than $3,000.00.

In cases where jurisdiction is derived from diversity of citizenship coupled with a controversy involving a statutory minimum amount, it is the sum actually claimed in good faith by the plaintiff when he files his complaint which determines the jurisdiction of the court and the fact that the plaintiff may not succeed in recovering all that he seeks in good faith will not affect the jurisdiction of the court. Upton v. McLaughlin, 105 U.S. 640, 26 L.Ed. 1197; Schunk v. Moline, etc., Co., 147 U.S. 500, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 27 S.Ct. 297, 51 L. Ed. 656; Hardin v. Cass County, C.C., 42 F. 652; Washington County v. Williams, 8 Cir., 111 F. 801; Board of County Commissioners v. Vandriss, 8 Cir., 115 F. 866; Service Finance Corporation v. Coppard, 5 Cir., 116 F.2d 488. Citations in great number might be added, but there seems to be no dissent upon the suggested point.

It is true that where, through bad faith elements or causes of action are introduced for the manifest purpose of inflating a claim to a point above the jurisdictional minimum, jurisdiction will be denied. Bank of Arapahoe v. David Bradley & Co., 8 Cir., 72 F. 867. "By good faith is meant that the sum demanded in the pleading is the real matter put in dispute, and not so clearly fictitious as to make it legally certain that the amount alleged was merely to confer jurisdiction because clearly beyond reasonable expectation of recovery." Miller Crenshaw Co. v. Colorado Mill & Elevator Co., 8 Cir., 84 F.2d 930, 932.

Both as a general legal rule and as a matter of local Nebraska law, the statute of limitations does not operate by its own force as a bar but operates rather as a defense to be pleaded by the party relying upon it. 37 C.J. 1213, Tit. Limitations of Actions, § 718 et seq., Scroggin v. National Lumber Co., 41 Neb. 195, 59 N. W. 548; Bell v. Rice, 50 Neb. 547, 70 N.W. 25; Hobson v. Cummins, 57 Neb. 611, 78 N.W. 295; McCormick Harvester Mach. Co. v. Cummins, 59 Neb. 330, 80 N.W. 1049; Dufrene v. Anderson, 67 Neb. 136, 93 N.W. 139; Hadley v. Corey, 137 Neb. 204, 288 N.W. 826. It is a personal defense and will be held and taken to have been waived unless it be raised by demurrer or by answer. See Nebraska cases last cited. Thus it is said in Hardin v. Cass County, supra 42...