Thompson v. German Ins. Co.

Citation76 F. 892
PartiesTHOMPSON v. GERMAN INS. CO. et al.
Decision Date24 November 1896
CourtU.S. District Court — District of Nebraska

Harry E. O'Neill, for complainant.

Greene & Breckenridge and James McNeny, for defendants.

SHIRAS District Judge.

From the allegations of the bill filed in this case, it appears that the complainant is the receiver of the Central Nebraska National Bank, of Broken Bow, duly appointed to that position by the comptroller of the currency; that on the 13th day of July, 1892, the comptroller made an assessment of 90 per cent. upon the face value of the shares of the capital stock of said national bank, the same being declared to be due and payable on the 3d day of August, 1892. The bill in this case was filed on the 5th day of October, 1896, more than four years after the assessment was made, and after the amount thereof was declared to be due and payable by the terms of the assessment order. The bill, in substance, charges that the German Insurance Company was one of the original shareholders in said bank, having subscribed for and taken 100 shares of the capital stock, of the par value of $100 per share, and that subsequently, with knowledge of the insolvent condition of the bank, the insurance company had transferred said shares to other parties, made defendants herein, for the express purpose of escaping the statutory liability existing against the shareholders of insolvent national banks. The purpose of the bill is to ascertain and fix the liability for the assessment made by the comptroller, the several parties to whom the stock has been transferred being made parties defendant. The amount of the assessment sought to be collected is $9,000.

To this bill demurrers have been interposed, and in support thereof it is first urged that the circuit court of the United States has not jurisdiction of the matter. The controversy is clearly one arising under the laws of the United States, the liability sought to be enforced being one created by the statutes of the United States; and, as the amount involved exceeds $2,000, exclusive of interest and costs, jurisdiction exists in this court, under the express provisions of the acts of congress of 1887 and 1888. The next ground urged in support of the demurrers in that the bill, upon its face shows that the proceeding is barred by the lapse of time under the provisions of the statutes of the state of Nebraska, which provide that, except in cases for the recovery of real property, actions upon contracts not in writing, express or implied, and actions upon a liability created by statute, other than a penalty or forfeiture, must be brought within four years after the right of action has accrued. Comp. St. Neb. 1895, Sects. 5599-- 5601.

The first question for decision is whether the provisions of the state statute can be relied upon as a bar to a liability created by a statute of the United States. This question, it seems clear to me, has been finally and fully answered by the ruling of the supreme court in Campbell v Haverhill, 155 U.S. 610, 15 Sup.Ct. 217. It had long been an unsettled problem whether an action for the infringement of a patent was subject to be barred by the statute of limitations of the state wherein the suit was brought, and the circuit courts were divided in opinion thereon. The supreme court, in Campbell v. Haverhill, held that the state statute was applicable, although the right of action was created by the statute of the United States, and the federal courts alone had jurisdiction over actions based upon the statute. Relying upon the doctrine announced in that case, I hold that the fact that this proceeding is based upon a federal statute does not except it from the operation of the state statute of limitations. The fact that this is a proceeding in equity is likewise of no avail against the applicability of the state statute, it being settled, by repeated decisions of the court of appeals in this circuit that the bar of the statute will be enforced, when applicable, in equity as well as at law. Railway Co. v. Sage, 1 C.C.A. 256, 49 F. 315; Rugan v. Sabin, 3 C.C.A. 578, 53 F. 415; Hayden v. Thompson, 17 C.C.A. 592, 71 F. 60.

On behalf of complainant, it is further suggested that, in substance, this is a proceeding in which the United States is interested, in such sense that the statute will not be held applicable, upon the familiar doctrine that the statute of limitations is not usually held applicable to suits brought by the sovereign power. The proceeding is not in the name of the United States. It is not brought, on behalf of the United States, to enforce any sovereign or governmental right...

To continue reading

Request your trial
10 cases
  • Deweese v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 25, 1901
    ......947, Howarth. v. Ellwanger (C.C.) 86 F. 54; Aldrich v. Yates. (C.C.) 95 F. 78, 81; Thompson v. Insurance Co. (C.C.) 76 F. 892, 894; Scovill v. Thayer, 105. U.S. 143, 155, 26 L.Ed. 968; ins v. Glenn, 131. U.S. 319, 333, 9 Sup.Ct. 739, 33 L.Ed. 184; Glenn v. Liggett, 135 U.S. 533, 545, ......
  • Todd v. Russell, 299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 8, 1939
    ...437; Hale v. Coffin, C.C., 114 F. 567, 576; Id., 1 Cir., 120 F. 470, 473; Godfrey v. Terry, 97 U.S. 171, 24 L.Ed. 944; Thompson v. German Ins. Co., C.C.Neb., 76 F. 892; Early v. City of Helena, 8 Cir., 87 F.2d 831, 832; Terry v. McLure, 103 U. S. 442, 26 L.Ed. 403. In fact, until we come to......
  • Brunswick Terminal Co. v. National Bank of Baltimore
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 8, 1898
    ...U.S. 214, 7 Sup.Ct. 140; O'Shields v. Railway Co., 83 Ga. 621, 10 S.E. 268; Railroad Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905; Thompson v. Insurance Co., 76 F. 892. It seem that, where foreign laws of limitation have been allowed to be pleaded, they have not been strictly laws of the limita......
  • Culhane v. Smith, 534.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 7, 1937
    ...v. Glenn, 131 U.S. 319, 9 S.Ct. 739, 33 L. Ed. 184; Glenn v. Marbury, 145 U.S. 499, 12 S.Ct. 914, 36 L.Ed. 790; Thompson v. German Insurance Company (C.C.) 76 F. 892; Van Pelt v. Gardner, 54 Neb. 701, 74 N.W. 1083, 75 N.W. 874), and the action was begun on May 20, 1898, more than four but l......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT