Willing v. Provident Trust Co.

• Decision Date: 26 October 1937
• Docket Number: No. 19462.,19462.
• Citation: 21 F. Supp. 237
• Parties: WILLING v. PROVIDENT TRUST CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

21 F. Supp. 237

WILLING v. PROVIDENT TRUST CO. et al.

No. 19462.

District Court, E. D. Pennsylvania.

October 26, 1937.

Thomas J. Minnick, Jr., of Philadelphia, Pa., for plaintiff.

John B. Gest, of Philadelphia, Pa., for defendant.

Alexander Conn, of Philadelphia, Pa., for additional defendants.

MARIS, District Judge.

This is a suit by the receiver of an insolvent national bank against a stockholder to recover a stock assessment levied by the Comptroller of the Currency. The original defendant caused a writ of scire facias to be issued bringing in John L. J. Belzer and others, formerly trading as Belzer & Co., as additional defendants, the scire facias alleging that they were liable over to the original defendant by reason of the fact that the stock on which the suit for assessment was brought was sold by the original defendant to them on or about February 18, 1933. It is averred in the statement of claim that the bank suspended payment on February 28, 1933.

The original defendant and the additional defendants are all residents of the State of Pennsylvania, and the amount involved is only $1,500. Furthermore, the cause of action set up in the scire facias is of a kind different from that averred in the statement of claim. It is, therefore, clear that this court has no jurisdiction of the controversy disclosed in the scire facias, which arises from the alleged liability of the additional defendants to the original defendant. See the opinion of this court in Willing v. The Pennsylvania Company, 21 F.Supp. 233, filed September 10, 1937. Realizing this, the original defendant secured the rule now under consideration to show cause why the writ of scire facias should not be amended to aver that, in the event of their being any liability on the part of the original defendant, the additional defendants are severally liable with said original defendant for the cause of action declared on for the whole amount which might be recovered against the original defendant.

Such an averment would doubtless give this court jurisdiction, since it would show a cause of action between the plaintiff, an officer of the United States, and the additional defendants. This cause of action would arise from the quasi-contractual obligation imposed by the act of Congress upon the stockholders of national banks (12 U.S.C.A. § 63 et seq.)—the same obligation which the plaintiff in this suit is seeking to enforce against the original defendant. This, however, would be an entirely...