Tapley v. Martin

• Decision Date: 11 November 1874
• Citation: 116 Mass. 275
• Parties: Amos P. Tapley v. Lucretia W. Martin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

116 Mass. 275

Amos P. Tapley v. Lucretia W. Martin

Supreme Court of Massachusetts

November 11, 1874

Essex. Contract on an agreement made by the defendant to indemnify the plaintiff for any loss or damage sustained by him as surety on the bond of James D. Martin, as cashier of the Hide and Leather National Bank, Boston. At the trial, before Wells, J., the jury returned a verdict for the plaintiff, and the defendant alleged exceptions. The nature of the case appears in the opinion.

Exceptions overruled.

A. A Ranney, as amicus curioe, in support of the exceptions.

G. O Shattuck & O. W. Holmes, Jr., for the plaintiff.

Morton J. Ames, J., absent. Endicott, J., did not sit.

OPINION

Morton, J.

After the exceptions were allowed in this case the defendant died. At the time of her death she was a resident of Baltimore in the State of Maryland. It does not appear that she left any estate in this Commonwealth, and no administration has been taken out here. But the court has power, notwithstanding the death of the defendant, to render judgment on the verdict, as of a preceding day or term, if justice requires it. Gen. Sts. c. 115, § 14; c. 133, § 7. The decision in the case of Kelley v. Riley, 106 Mass. 339, and the reasons upon which that decision is based, apply to and govern the case at bar, and we therefore proceed to consider the exceptions alleged by the defendant at the trial.

1. The first exception is to the ruling of the court that the defendant was not entitled to remove the suit to the Circuit Court of the United States. At the time the suit was brought both parties were citizens of this state. The defendant afterwards removed to Maryland. The statute provides that where a suit "may hereafter be brought in any state court, in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state," such citizen of another state may, at any time before the final hearing or trial of the suit, remove the suit to the Circuit Court of the United States, in the manner pointed out in the statute. U.S. St. of 1867, c. 196. We are of opinion that this statute applies only to cases where, at the time the suit is brought, one of the parties is a citizen of another state than that in which it is brought. Any other construction would enable either party to all suits in the state courts to defeat the jurisdiction of the court, at his own option, by removing into another state. This was not the purpose or intention of the statute, and the fair construction of its language does not lead to such a result. We are therefore of opinion that the ruling excepted to was correct.

2. The copy of the certificate of organization of the Hide and Leather National Bank, certified by the comptroller of the currency, was properly admitted in evidence. The act of Congress provides that copies of such certificates duly certified by the comptroller, and authenticated by his seal of office, shall be evidence "in all courts and places within the United States." U.S. St. 1864, c. 106, § 6. And, independently of this provision, such certificates, when filed, are a part of the public records, and may be proved by duly authenticated copies. Stetson v. Gulliver, 2 Cush. 494. Oakes v. Hill 14 Pick. 442.

3. The court ruled "that there was no evidence in the case, as tendered, which showed such knowledge by the officers of the bank, of frauds or defalcations by Martin before the date of his bond as cashier, that the failure to communicate the information to the sureties would discharge them from the obligation of their bonds; and the defendant excepted. To understand this question it is necessary to state the facts bearing upon it. James D. Martin, a son of the defendant, was appointed cashier of the Hide and Leather National Bank, in January, 1867. The plaintiff, at the request of the defendant, became one of his sureties, and the defendant gave the bond in suit to indemnify him against any loss by reason of his so becoming surety. Martin had been a book-keeper in the bank before he was appointed cashier, and the defendant introduced evidence tending to show that while he was book-keeper he was guilty of frauds and defalcations similar to those of which he was guilty after he became cashier, and for which the plaintiff, as his surety, was liable. She also introduced evidence tending to show that while Martin was book-keeper, the attention of the directors was called to the fact that there were errors and inaccuracies in his books. But there was no evidence that the officers of the bank had knowledge that Martin, while book-keeper, was guilty of frauds or defalcations.

The defendant contended at the trial that the officers were guilty of gross negligence in not examining the books, and that the sureties were thereby discharged. But the court ruled, that...