Shattuck v. North British & Mercantile Ins. Co.

• Decision Date: 30 October 1893
• Docket Number: 294.
• Citation: 58 F. 609
• Parties: SHATTUCK v. NORTH BRITISH & MERCANTILE INS. CO. OF LONDON AND EDINBURGH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 609

SHATTUCK v. NORTH BRITISH & MERCANTILE INS. CO. OF LONDON AND EDINBURGH et al.

No. 294.

United States Court of Appeals, Eighth Circuit.

October 30, 1893

S. W Shattuck, Jr., for plaintiff in error.

Thomas Bates, (Fred W. Bentley, on the brief,) for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

This was an action at law commenced in the district court of Hodgeman county, Kan., on the 3d day of December, 1891, by S.W. Shattuck, Jr., the plaintiff in error, against the North British & Mercantile Insurance Company of London and Edinburgh, the First National Bank of Jetmore, Kan., and Frederick George. The complaint alleged, in substance, that the defendant insurance company verbally promised and agreed with Frederick George to renew a policy of fire insurance for the sum of $2,700 on the latter's stock of merchandise in his storehouse in Jetmore, Kan., from the 14th day of June 1891, at noon, to the 14th day of June, 1892, at noon; that on the 27th day of June, 1891, the property was destroyed by fire, and that thereafter the assured, Frederick George assigned in writing to the plaintiff, as collateral security for a promissory note for the sum of $2,232.40, which he owed the plaintiff, his cause of action against the insurance company for its failure and neglect to renew the policy. As to the defendants the First National Bank and Frederick George, the allegation of the complaint was that they and each 'have or claim to have, adversely to said plaintiff some interest in or lien upon the moneys due said plaintiff' from the defendant. There was a prayer for judgment against the insurance company for $7,052.34, the value of the goods destroyed by fire; and, as to the defendants the First National Bank and George, the prayer was that each of them be adjudged to have no interest in or lien upon the moneys due the plaintiff from the defendant. All of the defendants were duly summoned to answer. The defendants the bank and George never appeared to the action, and the plaintiff took no default or order against them. The defendant insurance company appeared in the state court, and removed the suit into the federal court, upon the grounds that the plaintiff was a citizen of the state of Kansas, and the defendant insurance company a foreign corporation, chartered by the laws of Great Britain, and a citizen of that kingdom, and that the suit involved a controversy wholly between the plaintiff and the petitioner, which could be finally determined between them. The plaintiff moved to remand the cause for the following, among other, reasons: (1) That all of the defendants did not join in the application for removal; (2) that it did not appear that the controversy was wholly between citizens of different states; (3) that it did not appear that the insurance company was not a citizen of some state of the United States. The overruling of this motion is the error chiefly relied upon.

The bank and George, upon the averments of the complaint, were not necessary parties. The insurance company had no interest in any controversy between those defendants and the plaintiff about the division of the fund that might be recovered from it in the suit. That was a controversy to be determined by a suit between the parties claiming the fund. With such a controversy the insurance company had no concern whatever. At most, the bank and George were merely nominal or formal parties, and the citizenship of such parties, or their presence on the record, is never...