Platt v. Larter

• Decision Date: 31 May 1899
• Citation: 94 F. 610
• Parties: PLATT v. LARTER et al.
• Court: U.S. District Court — Southern District of New York

94 F. 610

PLATT v. LARTER et al.

United States Circuit Court, S.D. New York.

May 31, 1899

Powell & Cady, for plaintiff.

Smith &amp Bowman, for defendants.

SHIPMAN Circuit Judge.

This is an action at law to enforce the liability of the defendants as executors of the last will of John A. Larter, who in his lifetime was a stockholder of the Western Farm Mortgage Trust Company of Kansas, and which stock the defendants, as executors, own, to pay the debts of that corporation. The complaint alleges, among other things, that the Commercial National Bank of Denver, Colo., recovered on June 3, 1893, in a state court of Kansas, a judgment against the Western Farm Mortgage Trust Company; that the execution which was issued upon this judgment was returned unsatisfied on September 7, 1894, and is unpaid; and also alleges the ownership by the defendants of 10 shares of stock at the date of the entry of judgment. John A. Larter died on April 6 1893. The defendants were appointed executors on May 1, 1893. This action was commenced on September 10, 1898. The alleged liability is $1,000 and interest. The plaintiff is receiver of the Commercial National Bank. The defendants, in their answer, stated nine defenses, to the second, sixth, and eighth of which the plaintiff demurred. The defenses which were demurred to are as follows:

Second. 'Said defendants allege, upon information and belief that the alleged cause of action set forth in the complaint matured and became due more than two years immediately preceding the commencement of this action, and that therefore this action cannot be brought under the statutes of the state of New York. ' Sixth. 'Said defendants allege, upon information and belief, that said Western Farm Mortgage Trust Company of Lawrence, Kansas, with its property and assets, went into the hands of a receiver or receivers, and certain of such property and assets remains in the hands of such receiver or receivers, and is applicable to the discharge of obligations held by creditors of said corporation, in exoneration of these defendants. ' Eighth. 'That said defendants allege, upon information and belief, that before and at the time of the commencement of this action the said Western Farm Mortgage Trust Company of Lawrence, Kansas, was and still is indebted to the defendants in the sum of at least $1,067.75, with interest thereon at the rate of seven per cent. per annum from the 5th day of January, 1898, for the following cause: That on the date last mentioned, and for a long time prior thereto, and at the present time, these defendants, as executors aforesaid, were and are the holders and lawful owners of a certain bond or obligation of the said Western Farm Mortgage Trust Company of Lawrence, Kansas, in the sum of $1,000, which is long past due, and no part of which has been paid; that in the year 1897 these defendants commenced their action against the said Western Farm Mortgage Trust Company of Lawrence, Kansas, upon said bond, in the district court of Douglas county, Kansas, by personal service of the summons in said action upon the said trust company within the jurisdiction of said court; that in said action said trust company duly appeared by its attorneys, and that the issues in said action came regularly on to be heard by the said district court of Douglas county, Kansas, on the 5th day of January, 1898, and, the issues having been then duly tried in said court, judgment was rendered thereby in favor of these defendants (the plaintiffs in said action) against the said Western Farm Mortgage Trust Company of Lawrence, Kansas, for the sum of $1,067.75, with interest at seven per cent. per annum, and that said judgment is now in full force and effect and is wholly unpaid; that the said district court of Douglas county, Kansas, had full jurisdiction, under the laws of said state, to hear and determine said cause; that thereafter, and on the 7th day of January, 1898, an execution duly issued out of the said district court, directed and delivered to the sheriff of Douglas...