Parks Co. v. City of Decatur, Illinois

• Decision Date: 15 June 1905
• Docket Number: 1,385.
• Citation: 138 F. 550
• Parties: PARKS CO. v. CITY OF DECATUR, ILLINOIS.
• Court: U.S. Court of Appeals — Sixth Circuit

138 F. 550

PARKS CO. v. CITY OF DECATUR, ILLINOIS.

No. 1,385.

United States Court of Appeals, Sixth Circuit.

June 15, 1905

D. W Sanders and Wm. Furlong, for plaintiff in error.

C. C Walters, J. H. Latham, and Albert S. Brandeis, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge.

The plaintiff in error, a corporation of Kentucky, instituted this action against the city of Decatur, a municipal corporation of Illinois, by petition conforming to the Civil Code of Practice of Kentucky, in the Circuit Court for Jefferson county in the last-named state, and attached a fund in the German Insurance Bank of Louisville. A warning order was issued summoning the city of Decatur to appear. The writ of attachment was served on the bank, with a notice that the object of the action was to attach all money, choses in action, property, or other evidence of debt in its possession belonging to the city of Decatur. In due season the principal defendant filed its petition and bond for removal of the cause, on the ground of diversity of citizenship of the parties, into the Circuit Court of the United States for the Western District of Kentucky. When the cause reached that court it was assigned to the law docket. The bank filed its answer as garnishee, admitting that it held a fund of $3,000 which was claimed by the city of Decatur by virtue of a check drawn by the plaintiff in favor of the city of Decatur and certified by the bank.

The grounds of the action, as stated in the petition of the plaintiff, were that the plaintiff had on September 16, 1902 made a bid or proposal to the defendant for making an improvement of one of its streets for a certain price, and as evidence of its good faith, had deposited with the city a certified check for $3,000; that afterwards the board of local improvements of the city declared the said bid null and void, and forfeited said check, and thereupon the city unlawfully, without cause, and without giving to the plaintiff any notice or opportunity to be heard, appropriated the said check to its own use, and thereby deprived the plaintiff of this, its said property, without due process of law. And thereupon the petition proceeds to state, 'that, by reason of the facts herein set out, the defendant is justly indebted to this plaintiff for money had and received without consideration therefor, that its said claim is just, that plaintiff ought to recover thereon said sum of three thousand dollars ($3,000), and that the defendant is a foreign corporation of the state of Kentucky. ' The certified check mentioned in this petition is the same certified check mentioned in the answer of the garnishee.

The cause having been docketed in the court below, the defendant, appearing specially for that purpose, filed a demurrer to the petition, showing cause in the language following: 'That this court has not jurisdiction of the person of defendant or of the subject-matter of this suit, or of the res or thing attached herein. ' And the defendant moved that the cause be dismissed. Concurrently, the plaintiff moved that the cause be remanded to the state court. The court denied the motions to remand and to dismiss, and overruled the demurrer. Thereupon the defendant, not waiving its objection to the jurisdiction, answered the petition. It is unnecessary to set out the answer in full. It is sufficient for the purposes of the case to say that it claimed to have lawfully forfeited and appropriated the check for $3,000 by virtue of the statutes of Illinois relating to contracts for the making of public improvements by the municipalities of that state. Hurd's Rev. St. Ill. c. 24, as amended by Act May 9, 1901 (Acts 1901, p. 113). Sections 76 and 77, as amended by the act of 1901, provide as follows:

'Sec. 76. * * * All proposals or bids offered shall be accompanied by cash, or by a check payable to the order of the president of the board of local improvements in his official capacity, certified by a responsible bank, for an amount which shall not be less than ten (10) per centum of the aggregate of the proposal. Said proposals or bids shall be delivered to the board of local improvements, and said board shall, in open session, at the time and place fixed in said notice, examine and publicly declare the same. Provided, however, that no proposals nor bids shall be considered unless accompanied by such check or cash.

'Sec. 77. * * * But the checks accompanying such accepted proposals or bids shall be retained in the possession of the president of the said board until the contract for doing said work, as hereinafter provided, has been entered into, either by said lowest responsible bidder or by the owners of a majority of the frontage, whereupon said certified check shall be returned to said bidder. But if the said bidder fails, neglects or refuses to enter into a contract to perform said work or improvement, as herein provided, then the certified check accompanying his bid, and the amount therein mentioned, shall be declared to be forfeited to said city, village or town, and shall be collected by it and paid into its fund for the repairing and maintenance of like improvements; and any bonds forfeited may be prosecuted, and the amount due thereon collected and paid into the same fund.'

The default of the plaintiff, upon which the defendant had forfeited and appropriated the check, consisted in the alleged failure of the plaintiff to execute within the stipulated time a proper contract for the performance of the work, and give a proper bond therefor.

A stipulation waiving a jury trial was filed, the facts were agreed upon, and the cause submitted to the court. Because of the judgment finally entered, it is needless to recapitulate the agreed facts. The court made certain findings of law concerning the jurisdictional question as well as the merits. In view of the judgment, these latter-- those concerning the merits-- may also be passed over. The judgment entered by direction of the court was as follows:

'In consideration of the premises, it is considered and adjudged by the court that the plaintiff's petition be, and it is, dismissed, but that this dismissal is without prejudice to the right of the plaintiff again to sue upon the same cause of action in any court of competent jurisdiction in the state of Illinois. It is further considered and adjudged by the court that the attachment levied on the fund in the hands of the garnishee, the German Insurance Bank, be, and it is now, discharged. It is further considered and adjudged by the court that the defendant recover of the plaintiff its costs herein expended, and may have execution.' To each part of this judgment the plaintiff excepted.

It appears that the opinion of the court in respect to its jurisdiction, given at the hearing of the demurrer, was changed by further consideration, and the question for us is whether its final conclusion is right. The jurisdiction of the court below depended on the jurisdiction of the state court from which the cause was removed. No doubt is entertained that when the defendant is a private citizen of another state, and the plaintiff is either an individual or a corporation having an office and doing business in Kentucky the statutes of the latter state are sufficient to give the...