Stewart v. Nebraska Tire & Rubber Co.

• Decision Date: 27 February 1930
• Docket Number: No. 8672.,8672.
• Citation: 39 F.2d 309
• Parties: STEWART et al v. NEBRASKA TIRE & RUBBER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 309 (1930)

STEWART et al v. NEBRASKA TIRE & RUBBER CO.

No. 8672.

Circuit Court of Appeals, Eighth Circuit.

February 27, 1930.

Robert M. Witwer, of Mason City, Iowa (W. C. Shepard, of Allison, Iowa, and John A. Senneff, William L. Bliss, and John A. Senneff, Jr., all of Mason City, Iowa, on the brief), for appellants.

David A. Fitch, of Omaha, Neb. (Norris Brown and Ralph M. West, both of Omaha, Neb., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.

MILLER, District Judge.

This case comes here on two assignments of error:

1. That the lower court erred in refusing to grant the motion of the appellant to remand this case to the district court of Butler county, Iowa.

2. That the lower court erred in sustaining the motion of the appellee to quash, set aside, and annul the service of the original notice on the appellee.

Pleadings.

On March 21, 1921, appellee, at Omaha, Neb., executed and delivered to one Lewis A. Heisler its certain promissory note for the sum of $8,477, payable at the Beaver Valley State Bank of Parkersburg, Iowa; that on the same date said Lewis A. Heisler indorsed, negotiated, and transferred said note to said bank. Thereafter the appellant herein became trustee of said bank, and plaintiff in this suit originally brought in the district court of Butler county, Iowa, against the maker and appellee herein and the said Lewis A. Heisler.

The grounds for removal were: (1) That in said suit a controversy existed which was wholly between citizens of different states, viz., the appellant, plaintiff below, and the Beaver Valley State Bank of Parkersburg, Iowa, of which he was trustee, were at all times citizens and residents of the state of Iowa, and that the appellee herein was at all times a citizen and resident of the state of Nebraska; (2) that the controversy between said appellee and appellant herein is wholly independent and separable from the controversy between the appellant and Lewis A. Heisler, codefendant in the state court.

The motion to quash the service is predicated upon the grounds that appellee had never sought or received any permit to do business in the state of Iowa, never had any place of business therein or any agent authorized to act for it in the transaction of any business in said state, and never had done or transacted any business therein; that it was at all times a corporation, resident, and citizen of the state of Nebraska, with its principal office and place of business in the city of Omaha; that its officers on whom such pretended service of said original notice was had at Council Bluffs, Iowa, were not at the time of said service transacting any business on behalf of appellee in the state of Iowa, but were in fact fraudulently enticed and inveigled to come from Omaha, Neb., to Council Bluffs, Iowa, on the invitation of one Malloney to dine with him, when the real purpose was to furnish an opportunity to serve appellee with said original notice in this suit, and that therefore such pretended service of said original notice on its officers was fraudulent and void.

On the motion to remand, appellant's theory is that because of the Nebraska statute, in force at the time of the bringing of this suit, which provides, "Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff" (Comp. St. 1922, § 8544), and the Iowa statute, in force at the time, providing, "Where two or more persons are bound by contract or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally only, including the parties to negotiable paper, common orders, and checks, and sureties on the same or separate instruments, or by any liability growing out of the same, the action thereon may, at the plaintiff's option, be brought against any or all of them * * *" (Code 1927, § 10975), the matter in controversy is a single debt for which both the appellee and Lewis A. Heisler are equally liable, and therefore not separable.

Appellant concedes that under the common law, and except for the statutes quoted, the obligations of the obligors are several, not joint; also, that the requisite jurisdictional amount in controversy and diversity of citizenship as between the appellant and the appellee existed. Except then for the statutes quoted this case was plainly removable.

Appellant's argument is that the laws of Nebraska, where the contract was made, and the laws of Iowa, where it is to be performed, are as much a part of the note in suit as if actually incorporated therein; that because said statutes authorize the appellant to enforce the same by a joint action against all parties obligor thereon, the legal effect is that each obligor has promised and agreed with appellant that the note might be so enforced, and therefore is bound to the appellant for that right; that such right so promised is a valuable, material, and vested right, making all obligors liable for the payment of one debt and bound to appellant for the right of joint action for the enforcement thereof. Therefore no separable controversy exists.

Appellee answers that the quoted statutes are procedural only, prescribing the practice in the enacting states but not intended to make changes in substantive law; that as construed by app...