Northern Trust Co. v. Anderson, 4104.

• Decision Date: 27 October 1933
• Docket Number: No. 4104.,4104.
• Parties: NORTHERN TRUST CO. v. ANDERSON et al.
• Court: U.S. District Court — Southern District of Iowa

5 F. Supp. 390

NORTHERN TRUST CO. v. ANDERSON et al.

No. 4104.

District Court, S. D. Iowa, S. D.

October 27, 1933.

DEWEY, District Judge.

The above-entitled cause came on for hearing in open court at Creston, Iowa, on its merits on the 23d day of October, 1933.

A motion by the plaintiff for default, judgment, and decree, filed October 18, 1933, was argued and submitted, to be decided by the court after hearing the evidence of the case on its merits. Evidence was introduced, the evidence closed and the cause submitted, whereupon the court raised the question as to its jurisdiction.

Plaintiff bases its cause of action as against the defendants in two counts. Count 1 is an action at law on a promissory note, and count 2 is a combination of the law action and suit on the promissory note with an action to foreclose a real estate mortgage in equity. The petition affirmatively alleged that the note and mortgage were executed on the 14th day of November, 1925, by the defendant Belle M. Anderson to the Taylor County State Bank of Clearfield, Iowa, and on the 24th day of November, 1925, the note was indorsed to the plaintiff and the mortgage assigned to the plaintiff; the mortgage being filed for record on the date of the assignment of the note and mortgage to the plaintiff. Plaintiff, an Illinois corporation, alleges that it is the holder and owner of said note in due course for value and without notice of any defects.

On the face of the petition, therefore, the cause of action as alleged is not within the jurisdiction of this court by a limitation of jurisdiction set out in section 24 of the Judicial Code (28 USCA § 41) as follows: "No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if 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 upon said note or other chose in action if no assignment had been made."

Plaintiff asked time to investigate and present authorities to show the jurisdiction of this court. Thereafter, and on the 25th day of October, 1933, a paper styled an "Amendment to Petition in Equity" was filed in the office of the Clerk of this court by the plaintiff, but without permission of the court, claiming and alleging that, by this amendment to make the pleadings conform to the evidence, it is shown that this court has jurisdiction; and for this purpose alleges in substance that the Taylor County State Bank of Clearfield, Iowa, acted as agent only for the loaning of the money by the plaintiff to the defendant Belle M. Anderson.

The plaintiff now claims that it was entitled to file this amendment as a matter of course under the authority of section 399, title 28, U. S. Code, 28 USCA § 399 (section 274c, Judicial Code). This section, however, is limited in the right which it gives for filing amendment to show diversity of citizenship, and it has nothing to do with a right of a party to file an amendment setting out a new cause of action or to allege facts to create for the first time jurisdiction upon the court where it had not theretofore existed.

The general statut...