Myers v. Hettinger, 1,097.

• Decision Date: 17 April 1899
• Docket Number: 1,097.
• Citation: 94 F. 370
• Parties: MYERS v. HETTINGER.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F. 370

MYERS v. HETTINGER.

No. 1,097.

United States Court of Appeals, Eighth Circuit.

April 17, 1899

'This writing witnesseth, that W. L. Little, of Hutchinson, state of Kansas, has this the 17th day of August, 1893, sold to Jas. Myers, the same city and state, ten shares (10) of stock of the Hutchinson National Bank, of said city, of the par value of one hundred ($100.00) dollars per share, for the sum of one thousand ($1,000.00) dollars, upon the following conditions, to wit: That said W. L. Little herein agrees and binds himself, his heirs and assigns, to repurchase the aforesaid ten shares of stock at the expiration of six months from this date at the price above stated, together with any interest or losses paid by said Myers on said stock during the said term of six months if the said Myers shall so elect. In witness whereof, we have hereunto set our hands and seals this day and date as above written.

W. L Little. (Seal.) 'Jas. Myers. (Seal.)'

It is averred that the bank was insolvent at the date of the contract; that on the 21st day of October, 1893, Little notified the defendant of the bank's insolvency, and 'that thereupon the said Little, for the purpose of securing the promises and agreements in said contract, made and delivered to this defendant two promissory notes for $1,000 each, payable one year from the date, and secured the same by mortgage upon real estate owned by the said Little in Reno county, Kansas; that, by oral agreement between the said Little and this defendant, it was agreed that one of said notes should be security against the note sued upon herein and that the other should be security for defendant's liability as a stockholder, in said bank; that he has sold one of the said $1,000 notes made by Little to James Duklow for enough to pay the assessment made against him as a stockholder in said bank; that he still holds and is the owner of the other note; that he has instituted suit upon the same in the district court of Reno county, Kansas, for the purpose of obtaining judgment thereon, and to foreclose the mortgage securing the same; that said suit is still pending and undetermined. ' The answer pleads the last-named $1,000 note as a set-off or counterclaim; but the plaintiff filed a motion 'to compel the defendant to elect which cause of action stated in his answer, if any are stated, he elects to stand on, for the reason that said answer sets up and pleads a counterclaim which is inconsistent with the other defenses plead by him, to wit, fraud and no consideration. ' The court sustained this motion, and the record recites: 'Whereupon the defendant elected to stand upon the first three counts of the answer, and withdraws the fourth and last count of the same,' which was the one which set up the $1,000 note as a set-off or counterclaim. 81 F. 805.

F. L. Martin, for plaintiff in error.

James McKinstry, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

At the threshold of this case we are constrained to remark that the record presents an inexcusable amount of rubbish. We fully agree with the learned trial judge that there is a 'want of simplicity in the pleadings. ' They are prolix, and contain much that is frivolous and irrelevant. The presentation of the case to this court is characterized by the same faults. As has been stated, the cause was tried before the court, who made a special finding of facts; and notwithstanding the repeated decisions of the supreme court and of this court, and, indeed, of all the appellate courts of the United States, that in such cases the appellate court cannot inquire whether the evidence supports the special findings of facts, but only whether the facts found are sufficient to support the judgment, there are various assignments of error to the effect that the evidence was not sufficient to support the special findings of facts, and the testimony is set out, and lengthy arguments made to support that contention. The record discloses that contentions were made in the lower court which were frivolous and hypercritical, and they are renewed in this court.

The jurisdictional averment of the complaint was that 'the plaintiff, Franklin P. Hettinger, receiver of the Hutchinson National Bank, of the city of Hutchinson, state of Kansas,' states 'that he is the duly appointed, qualified, and acting receiver of the Hutchinson National Bank; that as such receiver he is in charge of all the assets of said bank, with power to collect them by suit or otherwise; * * * that the plaintiff, Franklin Hettinger, receiver of the Hutchinson National Bank, is an officer of the government. ' The circuit court made two findings on this subject,-- one to the effect 'that on October 18, 1893, the said Hutchinson National Bank closed its doors, being insolvent, and was taken in charge by the comptroller of the currency, and the plaintiff in this action was appointed receiver,' and the other to the effect that 'th...