Miller v. Clifford
| Decision Date | 30 November 1904 |
| Docket Number | 555. |
| Citation | 133 F. 880 |
| Parties | MILLER et al. v. CLIFFORD et al. |
| Court | U.S. Court of Appeals — First Circuit |
Appeal from the Circuit Court of the United States for the District of Massachusetts.
William Reed Bigelow, for appellants.
William H. Leonard, Charles H. Hanson, and Even Winthrop Freeman, for appellees.
Before PUTNAM, Circuit Judge, and BROWN and HALE, District Judges.
This is a bill in equity filed July 17, 1903, in the superior court of Suffolk county, in the commonwealth of Massachusetts, by Alfred L. Miller and four others, citizens of the state of Colorado, creditors of the State Bank of Monte Vista, in the state of Colorado, acting for themselves and for all other creditors similarly situated who joined or may join in the action, plaintiffs, against George G. Clifford and five others, all of whom are declared in the bill of complaint to be of the commonwealth of Massachusetts, defendants. A list of the creditors who joined in the bill is set forth in a schedule annexed to it, which schedule is alleged to contain over 90 per cent. of all the known creditors of said bank. Further averments of the bill are: That the State Bank of Monte Vista was, and still is, a corporation organized under the laws of the state of Colorado on or before August 1 1890. That said bank did a general banking business in Colorado until June 15, 1899, when it became insolvent, and made an assignment, under the laws of the state of Colorado of all its assets to Norman H. Chapman, assignee, who gave bond, and is not acting as assignee. That the plaintiffs and all other creditors who joined in this action, except some who are specifically excepted, filed their claims with the assignee, and that there have been paid on all said claims 19 1/2 per cent. of the original face thereof, exclusive of interest, and that the assets of the bank have been substantially exhausted thereby; that the several plaintiffs deposited in the bank at different times from the organization thereof certain sums, and that the balance due to the plaintiffs by the said bank at the date of its failure was as follows:
-- That the remaining stockholders are as set forth in a certain schedule annexed to the bill. That 77 shares of stock are owned by residents of Colorado, 307 shares by the defendants, and 416 by residents of other states. That there is now unpaid on claims of the plaintiffs and all other known creditors entitled to enforce liability the sum of $62,475.88, with interest thereon from June 15, 1899, at 8 per cent., under the laws of the state of Colorado, to December 14, 1899, when 15 per cent. of said principal sum was paid by said assignee, with interest on the balance until December 1, 1901, when 4 1/2 per cent. of said principal sum was paid by said assignee, with interest on the balance until the finding of this bill of complaint, which sum amounts to more than $60,000. Wherefore it says that, if every stockholder should pay $80 upon every share of his stock in partial satisfaction of his said double liability, this would be insufficient wholly to pay said creditors.
The bill contains certain averments of law and certain other allegations which are not material to be stated here. The bill prays (1) that the defendants be adjudged stockholders; (2) that the defendants be ordered to pay to the plaintiffs named herein, or to a special master appointed by the court, twice the amount of the par value of the shares of stock owned by them, respectively, out of which the plaintiffs and all creditors of said bank now joined or that may hereafter be joined 'shall be paid forthwith, pro rata, such percentage of their claims as they shall be entitled to receive in any event, provided this liability is enforced against all of the stockholders of said bank, and is fully paid by them, and the remaining sum in the hands of the plaintiffs or said special master shall be held to pay to said creditors, pro rata, the balance due upon their claims, if any, after the plaintiffs have recovered all that they are able to recover by process of law and due diligence against the remaining stockholders of the State Bank of Monte Vista, and, if any sum remains in the hands of the plaintiffs, or of said special master after said creditors have been paid in full, said remaining sum shall then be rapid pro rate to the defendants'; (3) that the court appoint a special master to receive from the defendants the amounts for which they may be found liable as stockholders under said double liability, and 'forthwith to pay pro rata to the creditors now or hereafter joined herein such percentage of their claims as they shall be entitled to receive in any event, provided this liability is enforced against all the stockholders of said bank and is fully paid by them, and to hold the remaining sum until the plaintiffs have recovered all that they are able to recover by process of law and due diligence from the remaining stockholders of said bank of Monte Vista, and then to pay said creditors of said bank, pro rata, all that remains unpaid on their said claims, with interest, and thereafter to repay the balance, if any, pro rata, to the defendants,' and for other and further relief.
On September 8, 1903, Caroline B. Farrar, one of the defendants, filed a petition under the act of 1875, as amended by the act of 1887-88 (Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508)), for the removal of the case into the Circuit Court of the United States, alleging that the controversy is between citizens of different states; that the petitioner, a defendant in the suit, was at the time of the commencement of the suit, and still is, a citizen of the state of Maine; that she is a nonresident of the state in which the suit was brought, to wit, the state of Massachusetts, and that the other defendants severally in the above-entitled suit were then, and still are, each and all, citizens of the state of Massachusetts, and that the plaintiffs are, each and all, citizens of the state of Colorado; that 'in said suit above mentioned there is a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to wit, a controversy between said petitioner, defendant, and the said' several plaintiffs-- naming them by name. It appears by the record that on October 17, 1903, the cause was removed to the Circuit Court of the United States. On December 18, 1903, a demurrer was filed by the defendants, and on October 21, 1903, there was filed a motion to remand the case to the state court on the ground that the Circuit Court of the United States is without jurisdiction to hear and determine the cause. April 25, 1904, the cause was heard in the Circuit Court on the motion to remand and upon the demurrer. The motion to remand was denied, the demurrer was sustained, and the bill dismissed. From this decree the complaints have appealed to this court.
The first question to be considered is whether the Circuit Court of the United States properly exercised jurisdiction in the case. The cause was removed from the state court to the Circuit Court of the United States, as we have said, on the ground that there is a controversy wholly between citizens of different states, and which can be fully determined as between them, to wit, a controversy between the petitioner, defendant, and the plaintiffs. Does the case present a separable controversy?
The question of separable controversy has been fully discussed by the Supreme Court in a long line of cases. The leading case upon the subject is Torrence v. Shedd, 144 U.S. 530, 12 Sup.Ct. 726, 36 L.Ed. 528.
In that case Mr. Justice Gray, in speaking for the court, said:
'But in order to justify such removal on the ground of a separate controversy between citizens of different states there must, by the very terms of the statute, be a controversy 'which can be fully determined as between them'; and, by the settled construction of this section, the whole...
To continue reading
Request your trial
-
Missouri Pac. R. Co. v. Foreman
...471; Miller v. Le Mars Nat. Bank, C.C., 116 F. 551; Abel v. Book, C.C., 120 F. 47; Huntington v. Pinney, C.C., 126 F. 237; Miller v. Clifford, 1 Cir., 133 F. 880, 5 L. R.A.,N.S., 49; Heffelfinger v. Choctaw, O. & G. R. Co., C.C., 140 F. 75; Blackburn v. Blackburn, C.C., 142 F. 901; McNaul v......
-
Missouri Pacific Railroad Co. v. Foreman
... ... Co., 110 F. 10; ... Scott v. Choctaw, O. & G. R. Co., 112 F ... 180; German Savings & Loan Soc. v ... Dormitzer, 116 F. 471; Miller v. Le ... Mars Nat. Bank, 116 F. 551; Abel v ... Book, 120 F. 47; Huntington v ... Pinney, 126 F. 237; Miller v ... Clifford, ... ...
-
Miller v. Connor
...Zang v. Wyant, 25 Colo. 551; Abbott v. Goodall, 100 Me. 235; Miller v. Smith, 58 A. 638; Miller v. Willett, 62 A. 178; 65 A. 981; Miller v. Clifford, 133 F. 880; v. Cushman, 96 Me. 148; Gillin v. Sawyer, 93 Me. 152; Hawkins v. Glenn, 131 U.S. 319; McClaine v. Rankin, 197 U.S. 154; Scovill v......
-
United States v. Freeman
...would call for the "securing and distribution of a fund." The force of this decision, moreover, is much weakened by Miller v. Clifford (C.C.A.) 133 F. 880, 5 L.R.A.(N.S.) 49, dealing with the same statute. Commenting on Auer v. Lombard, it was said that the court in the earlier case had und......