Parkerson v. Borst

• Decision Date: 05 April 1918
• Docket Number: 3202.
• Citation: 251 F. 242
• Parties: PARKERSON v. BORST.
• Court: U.S. Court of Appeals — Fifth Circuit

251 F. 242

PARKERSON v. BORST.

No. 3202.

United States Court of Appeals, Fifth Circuit.

April 5, 1918

Edwin T. Merrick, Philip Gensler, Jr., and Ralph J. Schwarz, all of New Orleans, La., for appellant.

E. J Bowers, of Gulfport, Miss., and D. B. H. Chaffe, of New Orleans, La., for appellee.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

The jurisdiction of the District Court is questioned by the appellee; the citizenship of the plaintiff, in the state of Mississippi, as alleged in the bill, being challenged as a matter of fact by the appellant. The question was raised in the District Court by a motion to dismiss the bill for want of jurisdiction.

In the view we have taken of the side of the court upon which the case was properly triable, the issue as to the citizenship of the plaintiff would have been better presented by a plea in abatement in the nature of a plea to the jurisdiction, as held in the case of Hartog v. Memory, 116 U.S. 588 6 Sup.Ct. 521, 29 L.Ed. 725; upon which plea an issue could have been framed, which would have been triable by a jury. However, the defendant elected to present the question by way of a motion, addressed to the court and tried by him, with the consent of the defendant. This was equivalent to a waiver of defendant's right to a jury trial upon this issue and a consent that it be heard by the District Judge without a jury. The District Judge found, upon the facts submitted to him upon hearing of the motion to dismiss for want of jurisdiction, that the plaintiff was a citizen of Mississippi, and the finding is supported by tendencies of the evidence set out in the record. Giving to the finding the effect a verdict of a jury would have been entitled to, if the issue had been so tried, we do not think the evidence was so clearly against the conclusion of the District Judge as to warrant us in setting aside his conclusion, on the motion to dismiss for want of jurisdiction in the District Court as a federal court.

After the defendant had answered the bill of complaint, but before any testimony was taken by either plaintiff or defendant, the defendant moved the court to transfer the cause to the law side of the docket under the twenty-second equity rule. The plaintiff resisted the motion upon the ground (1) that the bill presented a proper case of equitable jurisdiction; and (2) that the motion, made after answer filed, came too late.

The cause of action presented by the bill of complaint had as its basis the transfer of certain notes which the intestate, who had acted as agent for defendant in the investment of her moneys, had made in his lifetime to others of his clients for whom he was acting in a similar capacity. It seems clear that the authority of the intestate to transfer securities of the plaintiff for reinvestment existed, if properly exercised and with no restrictions other than those imposed by the law. It is claimed by the plaintiff, and there is evidence in the record tending to support the claim, that the intestate transferred certain of the securities of the appellee to others of his clients, substituting therefor notes, which he had previously procured, either for himself or for another of his clients, when he was interested in the notes or in the success of the maker of them in a way that made it improper for him to have made the transfer; i.e., that he was acting in a dual capacity in the transaction, representing the plaintiff, the buyer, as agent, and being himself either the seller, or personally interested in procuring the transfer to his client, the plaintiff. The relief prayed in the bill was for an accounting, a money decree in a fixed amount ($20,000) against the estate of the intestate for the amount of plaintiff's money or securities used by the intestate to purchase the substituted notes for the plaintiff, and for general relief. The bill did not seek to follow the securities of the plaintiff alleged to have been transferred by the intestate, or to trace them into the possession of the transferees, nor did it seek to hold them or him as trustees in invitum. It merely sought a money decree against the estate of the intestate, to be satisfied out of its general assets, as damages for the alleged unauthorized transfer or conversion of the money or securities of plaintiff, used by the intestate to purchase the notes, in which, or in the transfer of which, it is claimed the intestate was interested. The relief sought was such that 'a judgment for pecuniary damages would adjust and determine all the rights of the parties.'

In the case of Buzard v. Houston, 119 U.S. 353, 7 Sup.Ct 249, 30 L.Ed. 451, the Supreme Court said of a bill praying for that character of relief that, it...