Thompson v. Pool

• Decision Date: 03 December 1895
• Parties: THOMPSON v. POOL et al.
• Court: U.S. District Court — District of Nebraska

70 F. 725

THOMPSON v. POOL et al.

United States Circuit Court, D. Nebraska.

December 3, 1895

Sawyer Snell & Frost, for plaintiff.

E. C Calkins, for defendant.

SHIRAS District Judge.

The plaintiff in this action is the receiver of the First National Bank of Ravenna, Neb., acting as such by virtue of an appointment made by the comptroller of the currency, and the action is based upon a draft drawn by W. W. Pool on Rollin L. Downing for the sum of $2,000. After acceptance by Downing, the draft was transferred by indorsement to the First National Bank, and by it pledged, with other collaterals, to the United States National Bank of Omaha to secure a loan of $5,000. Upon the appointment of the plaintiff as receiver of the insolvent First National Bank of Ravenna, the draft was placed in his hands for collection being indorsed to him as follows:

'Pay S. B. Thompson, receiver, for collection, and in trust for United States National Bank, Omaha, Neb. M. T. Barlow Cashier.'

The defendants move the court to dismiss the action brought by the receiver, on two grounds: First, that the plaintiff is in fact suing as the indorsee of the United States National Bank, and as that bank could not sue in this court, because the defendants are citizens of Nebraska, therefore the plaintiff, as indorsee, cannot sue in this court under the provisions of the act of 1888; and, second, because the amount in controversy does not exceed $2,000, exclusive of interest and costs.

In the case of Holmes v. Goldsmith, 147 U.S. 150, 13 Sup.Ct. 288, it was held by the supreme court that it was open to the parties to show by evidence, outside the written contract sued on, what the real relation of the parties thereto was, in determining whether, in fact, the plaintiff was seeking to enforce a right of action conferred upon him by the indorsement, or whether his right of action was otherwise created. Under the rule announced in that case, it is open to the plaintiff to show and prove that he is seeking to recover upon the title created in him as the receiver of the First National Bank to all the assets of that bank; and the averments of the petition show that the draft in question, although pledged as a collateral to the United States National Bank, still remains an asset of the bank of which plaintiff is receiver. The action by the receiver is, therefore, to enforce a right conferred upon him by the statutes of the United States, and, being based upon the laws of the United States, the controversy, so far as the subject-matter is concerned, is of federal cognizance; and the clause of the act in regard to suits upon assigned choses in action is not applicable to this case. The controversy is one arising under the laws of the United States, of which this court has jurisdiction, regardless of the citizenship of the parties, provided the amount involved exceeds $2,000, exclusive of interest and costs. As already stated, the draft sued upon is for just $2,000, and no more, and therefore jurisdiction cannot be taken by this court under any of the provisions of the act of 1888.

But it is urged in argument that the suit, being in the name of the receiver of a national bank, appointed by the comptroller can be held to be a suit brought by an officer of the...