Newgass v. City of New Orleans

• Decision Date: 02 January 1888
• Citation: 33 F. 196
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: NEWGASS v. CITY OF NEW ORLEANS. STEWART v. SAME. GARRITY v. NEW ORLEANS PACKING & CANNING CO.

33 F. 196

NEWGASS v. CITY OF NEW ORLEANS.

STEWART v. SAME.

GARRITY v. NEW ORLEANS PACKING & CANNING CO.

United States Circuit Court, E.D. Louisiana.

January 2, 1888

Syllabus by the Court

Held that the proper construction requires that in the first section of the act of March 3, 1887, in the clause, 'or of any subsequent holder of such instrument be payable to bearer, and be not made by any corporation,' the word 'of,' preceding the words 'such instrument,' should be held to be 'if.'

Held that where the transfer of choses in action requires an assignment, the court has no jurisdiction over cases where an assignee is plaintiff, unless the court would have had jurisdiction had the action been brought by the assignor.

Held that where the transfer of choses in action may be made by delivery, and the obligation is made to bearer, and by a corporation, and the parties to the suit are citizens of different states, the court has jurisdiction, although had the suit been brought by a former holder the court would have had no jurisdiction.

Charles Louque, for plaintiffs Newgass, Stewart, and Garrity.

W. H Rogers, for defendant city of New Orleans.

Nicholls & Carroll, for defendant New Orleans Packing and Canning Company.

BILLINGS J.

These cases are submitted upon the same exceptions; i.e., upon the same plea to the jurisdiction. In each case is presented for construction that part of the act of 1887 which restricts the jurisdiction when the suit is upon a chose in action, and there has been an assignment or transfer. In each case the chose in action was made by defendant, who is a corporation, and the suit is between citizens of different states. In the first and second cases, the plaintiff claims title to a chose in action which could be transferred only by assignment, and the assignor could not have maintained suit, being a citizen of the same state as the defendant. In the third case, the plaintiff sues, as a subsequent holder, upon an instrument, payable in its terms to bearer, which could of course be transferred by delivery without any other assignment, and the first holder could not have maintained suit in this court, being a citizen of the same state as the defendant.

Section 1 of the act of 1887, after granting to the circuit courts jurisdiction in cases 'in which there shall be a controversy between citizens of different states,' contains the following restriction:

'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 residence of either the plaintiff or the defendant; nor shall any circuit or district court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder of such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents, if no assignment or transfer had been made; and the circuit courts shall also have appellate jurisdiction from the district courts, under the regulations and restrictions prescribed by law.'

It is manifest that there is some error in the sentence as printed in the statute, 'or of any subsequent holder of such instrument be payable to bearer and be not made by any corporation. ' If we turn to the Congressional Record vol. 18, No. 65, at page 2721, we find that this section of this bill, which had come from the house or representatives, was amended in the senate by inserting the following:...