McLean v. State of Mississippi, No. 8739.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtFOSTER, SIBLEY, and HUTCHESON, Circuit
Citation96 F.2d 741,119 ALR 670
Decision Date12 May 1938
Docket NumberNo. 8739.
PartiesMcLEAN v. STATE OF MISSISSIPPI ex rel. ROY. STATE OF MISSISSIPPI ex rel. ROY v. McLEAN.

119 ALR 670, 96 F.2d 741 (1938)

McLEAN
v.
STATE OF MISSISSIPPI ex rel.
ROY.
STATE OF MISSISSIPPI ex rel.
ROY
v.
McLEAN.

No. 8739.

Circuit Court of Appeals, Fifth Circuit.

May 12, 1938.


96 F.2d 742

Fred H. Montgomery and Ed. C. Brewer, both of Clarksdale, Miss., for appellant and cross-appellee.

Gerald Fitzgerald of Clarksdale, Miss., for appellee and cross-appellant.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Ephriam R. McLean was during 1934 sheriff of Bolivar county, Miss., and had given an official bond payable to the State of Mississippi with United States Fidelity & Guaranty Company as surety. During that year an atrocious murder was committed in the county, without eyewitnesses. The county supervisors employed police officers in Memphis, Tenn., to help discover the murderer. R. L. Roy was suspected, and the prosecuting attorney of Bolivar county had a warrant issued for his arrest which was delivered to McLean as sheriff, but on its face it ran only within the county and was never executed or returned. Five days later the Memphis officers telegraphed the sheriff that Roy was in custody in Shreveport, La., and requested that Roy be brought to Memphis before being questioned. The same day the sheriff at Shreveport telegraphed McLean that Roy would return without extradition papers. McLean, who was making application for formal extradition papers, replied, requesting that Roy be held and promising to be in Shreveport the next day. The sheriff at Shreveport again wired that Roy waived extradition and was ready for him. McLean and two deputies and the prosecuting attorney then went by automobile to Shreveport, took Roy, who in fact did not demand extradition, to Memphis, Tenn., and held him there ten days, McLean testifying that it was unsafe to take him to Mississippi because of threatened mob violence. Roy testifies to brutal "third degree" practices being inflicted on him while in Memphis by the police officers and prosecuting attorney, McLean at times being present and not interfering. Roy was finally taken by McLean into Bolivar county, Miss., and put in jail there, but was soon released because the true murderer was discovered. Roy, a citizen of Louisiana, brought suit in the District Court of the United States for the Northern District of Mississippi upon the official bond of McLean, a citizen and resident of the Northern District of Mississippi, joining

96 F.2d 743
his surety, United States Fidelity & Guaranty Company, a corporation of Maryland but doing business in Mississippi and having a statutory agent for service resident in said Northern District upon whom service was made. By a special appearance United States Fidelity & Guaranty Company asserted that it was not suable in the Northern District of Mississippi and was discharged. Verdict and judgment went against McLean solely on account of the occurrences in Tennessee. This appeal and cross-appeal present two questions: Was the surety suable in this venue? Was the sheriff's bond liable for what happened in Tennessee

United States Fidelity & Guaranty Company was allowed to sign the bond by reason of having qualified under the laws of Mississippi as a foreign guaranty company. These laws, Code of Mississippi of 1930, §§ 5133, 5165, require as a condition of doing business in the State that, among other things, the company shall appoint the commissioner of insurance and his successors "its true and lawful attorney, upon whom all process in any action or legal proceeding against it may be served, and that process so served shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state." The company by formal directors' resolution expressly agreed to the things required in the statute, and made a formal appointment of the insurance commissioner and his successors to receive service of all legal proceedings against it, which stated: "And said Company does hereby expressly agree that any and all lawful processes against it which may be served upon him shall be deemed valid personal service upon said Company and shall be of the same force and validity as if served upon said Company." These statutes and agreements are said to involve a consent to be sued in Mississippi in the district where the agent for service resides.

Federal jurisdiction appears. The State of Mississippi, as obligee in the bond, sues for the use of Roy as the Mississippi statutes provide. But Roy is the real plaintiff and his citizenship is what counts, and is diverse from the citizenship of McLean and his surety. But the venue statute, 28 U.S.C.A. § 112, provides, with immaterial exceptions: "No civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the...

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20 practice notes
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...Dairy Co., D.C.Del.,1930, 38 F.2d 671; Standard Stoker Co. v. Lower, D.C.Md., 1931, 46 F.2d 678; McLean v. Mississippi, 5 Cir.,1938, 96 F.2d 741, 119 A.L.R. 670; Gray v. Reliance Ins. Co., D.C.W.D.La., 1938, 24 F.Supp. 144; Hamilton Watch Co. v. George W. Borg Co., D.C.N.D.Ill.,1939, 27 F.S......
  • Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., No. 1687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 19, 1938
    ...U.S. 177, 179, 180, 49 S.Ct. 98, 73 L.Ed. 252; Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; McLean v. State of Mississippi, 5 Cir., 96 F.2d 741, 4 Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364, 53 S.Ct. 624, 77 L.Ed. 1256, 89 A.L.R. 653; Lafayette In......
  • Kapson v. Kubath, Civ. A. No. 2289.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 27, 1958
    ...and that when he exceeds that jurisdiction he is acting as a private citizen. In McLean v. State of Mississippi ex rel. Roy, 5 Cir., 96 F.2d 741, at pages 744, 745, 119 A.L.R. 670, certiorari denied 305 U.S. 623, 59 S.Ct. 84, 83 L.Ed. 399, which involved an action on a Mississippi sheriff's......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...jurisdiction over Bitker, who was served out of the state. Putnam v. Ickes, supra; McLean v. State of Mississippi ex rel. Roy, 6 Cir., 96 F.2d 741, 119 A.L.R. 670. Plaintiff contends, however, that Bitker merely had a personal privilege respecting the place of suit, and that he could and di......
  • Request a trial to view additional results
20 cases
  • Neirbo Co v. Bethlehem Shipbuilding Corporation, No. 38
    • United States
    • United States Supreme Court
    • November 22, 1939
    ...Dairy Co., D.C.Del.,1930, 38 F.2d 671; Standard Stoker Co. v. Lower, D.C.Md., 1931, 46 F.2d 678; McLean v. Mississippi, 5 Cir.,1938, 96 F.2d 741, 119 A.L.R. 670; Gray v. Reliance Ins. Co., D.C.W.D.La., 1938, 24 F.Supp. 144; Hamilton Watch Co. v. George W. Borg Co., D.C.N.D.Ill.,1939, 27 F.S......
  • Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., No. 1687.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 19, 1938
    ...U.S. 177, 179, 180, 49 S.Ct. 98, 73 L.Ed. 252; Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853; McLean v. State of Mississippi, 5 Cir., 96 F.2d 741, 4 Washington ex rel. Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364, 53 S.Ct. 624, 77 L.Ed. 1256, 89 A.L.R. 653; Lafayette In......
  • Kapson v. Kubath, Civ. A. No. 2289.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • August 27, 1958
    ...and that when he exceeds that jurisdiction he is acting as a private citizen. In McLean v. State of Mississippi ex rel. Roy, 5 Cir., 96 F.2d 741, at pages 744, 745, 119 A.L.R. 670, certiorari denied 305 U.S. 623, 59 S.Ct. 84, 83 L.Ed. 399, which involved an action on a Mississippi sheriff's......
  • Blank v. Bitker, No. 8215.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 10, 1943
    ...jurisdiction over Bitker, who was served out of the state. Putnam v. Ickes, supra; McLean v. State of Mississippi ex rel. Roy, 6 Cir., 96 F.2d 741, 119 A.L.R. 670. Plaintiff contends, however, that Bitker merely had a personal privilege respecting the place of suit, and that he could and di......
  • Request a trial to view additional results

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