Stephens v. Bernays
| Decision Date | 24 September 1890 |
| Citation | 44 F. 642 |
| Parties | STEPHENS v. BERNAYS. |
| Court | U.S. District Court — Eastern District of Missouri |
H. A Loevy, for plaintiff in error.
Geo. D Reynolds, U.S. Atty., for defendant in error.
Before MILLER, Justice, and CALDWELL, J.
This is an appeal from the district court. See 41 F. 401. The error assigned is that the district court had no jurisdiction of the case. The action is brought by the receiver of an insolvent national bank to collect assessments on stock. The stockholder died, and this suit is brought against his executrix. The first contention of the counsel for the defendant (the plaintiff in error) is that the district court has no jurisdiction of the case at all. That the fourth subdivision of section 563 of the Revised Statutes of the United States, which says that the district court shall have jurisdiction of 'all suits at common law, brought by the United States, or any officer thereof authorized by law to sue,' has been repealed by the act of August 13, 1888 (25 St.at Large, 433.) That act does not repeal the clause referred to, but, on the contrary, in terms confers on the district court jurisdiction in this class of cases. The fourth section of the act provides that all national banks and associations established under the laws of the United States shall, for the purpose of actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the state in which they are respectively located, and in such cases the circuit and district court shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state. The proviso is:
'The provision of this section shall not be held to affect the jurisdiction of the courts of the United States, in cases commenced by the United States, or by the direction of any officer thereof, or cases for winding up the affairs of any such bank.'
Now, this case falls within the provisions of that proviso in two or three respects. In the first place, it is a case for winding up the affairs of the bank. It is a suit directed by an officer of the United States, and prosecuted by an officer of the United States. The comptroller is an officer of the United States. He appointed the receiver, who is also an officer of the United States, and directed him to bring this suit. It was suggested by counsel for the appellant that the word 'commenced' in this proviso should be construed to mean 'now pending,' but obviously that is not its meaning. The difference between the language in that proviso and that in the proviso of the fourth section is marked. The proviso of the fourth section declares:
'The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States, or by direction of any officer thereof, or cases for winding up the affairs of any such bank.'
The word 'commenced' in this proviso is to be given a prospective, as well as a present, operation. The proviso is to be...
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...17 F. 506; Armstrong v. Trautman (C.C.) 36 F. 275; Brown v. Smith (C.C.) 88 F. 565; Stephens v. Bernays (D.C.) 41 F. 401, affirmed (C.C.) 44 F. 642; Rankin v. Herod (C.C.) 140 F. 661. See, also, United States v. Weitzel, 246 U.S. 533, 541, 38 S.Ct. 381, 62 L.Ed. 872. 6 McDonald v. Thompson,......
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