Wolcott v. Sprague

• Decision Date: 20 April 1891
• Docket Number: 6,597.
• Citation: 55 F. 545
• Court: U.S. District Court — District of Kansas
• Parties: WOLCOTT v. SPRAGUE et al.

55 F. 545

WOLCOTT v. SPRAGUE et al.

No. 6,597.

United States Circuit Court, D. Kansas.

April 20, 1891

E. F Ware, for plaintiff.

H. G Laing and U. B. Sutton, for defendants

FOSTER District Judge.

In this case the amount in controversy as between plaintiff and the insurance company is not the $1,000 set out in plaintiff's bill of complaint. The plaintiff attacks the mortgage of the insurance company, which is for $4,000, and seeks to have it decreed, settled, and canceled. Under authority of Meyer v. Construction Co., 100 U.S. 457, the parties to the controversy should be arranged according to their interest in the subject-matter, and not as they appear on the record. So the plaintiff and the Spragues must be arrayed against the insurance company, for so their interests appear.

The motion to remand and plea in abatement are overruled.

Subsequently the cause was heard on its merits before Judge RINER, who, on April 11, 1893, filed the following opinion:

RINER District Judge.

This suit was originally brought in the state district court for Russell county (the petition being filed on the 9th day of April, 1890) to foreclose a deed which, although absolute in form, was given to secure the payment of a note due the First National Bank of Russell, Kan., and was, in effect, a mortgage. Gen.St.Kan. 1889, par. 3885. The defendant the Oakland Home Insurance Company, on the 12th day of May, 1890, filed a petition for removal in that court, which was denied. Thereupon, on June 21, 1890, defendant insurance company filed its answer in the state court. Subsequently, on the 10th day of September, 1890, defendant insurance company filed a transcript of the record from the state court in this court. The complainant and the two defendants the Spragues filed motions to remand, and a plea in abatement to the jurisdiction, which were argued before Judge FOSTER in April, 1891, and the motions to remand and the plea in abatement were by him overruled and denied. Thereupon the parties obtained leave to recast the pleadings to conform to the equity practice in this court. The complainant having filed this bill, the defendants the Spragues filed answer thereto, and the defendant the Oakland Home Insurance Company filed an answer and cross bill. The complainant, in his bill, and the Spragues in their answer, again object to the jurisdiction of this court, and insist upon their right to have the case remanded to the state court, which is perhaps proper enough in order to save their rights. Judge FOSTER having already passed upon that question in ruling upon the motions to remand and the plea in abatement, I must decline to again consider it here, and will dispose of the case, leaving the question of jurisdiction to be settled by the court of appeals.

Even if my own views were not in harmony with the views expressed by Judge FOSTER in his opinion, which is on file in the case, I would not feel at liberty to disturb the finding already made by him. Sitting as a district judge holding the circuit court, I do not feel called upon, and, indeed, do not think it would be proper for me, even if I differed in opinion, to disturb a ruling already made in the same case by another district judge sitting in the same capacity. Whether or not that ruling is right is, it seems to me, a question to be considered either by a circuit judge or by the court of appeals.

Proceeding then, to the merits of the case, it appears from the record that on the 21st of January, 1888, the defendant H. F. Sprague was the owner of lot 10, in block 77, in the city of Russell, Kan.; that upon this lot there was a two-story stone and brick building, which was of the value of $5,000; that on the date above mentioned the defendants H. F. Sprague and his wife made, executed, and delivered to one Charles Berrick a mortgage on the premises above described, to secure the sum of $4,000, loaned by Berrick to them. Upon the same day, but subsequent to the making and delivery of the mortgage to Berrick, the defendants H. F. Sprague and his wife made, executed, and delivered to one E. C. Haskett a deed to the same premises, subject to the mortgage to Berrick. At the time this deed was made and delivered to Haskett, Haskett was cashier of the First National Bank of Russell, and the defendants the Spragues were indebted to that bank in the sum of $1,000, for which they delivered to him by the Spragues for the sole purpose of securing the payment of said note. Haskett, then being cashier of the bank was acting as trustee and agent for the bank, and had no other interest in the transaction. On the 10th of March, 1888, the defendant H. F. Sprague applied to one E. T. Jones, then the duly-authorized and acting agent of the Oakland Home Insurance Company, defendant herein, for a policy of insurance in the sum of $4,000 upon the buildings located upon the ground heretofore described. Jones, under his agency, was authorized to solicit and effect insurance risks for the defendant company, and had in his possession blank policies of insurance signed and executed by the proper officers of the company, which policies became effective and in full force and binding upon the company when countersigned and in full force and binding upon the company when countersigned and delivered by Jones. At the time Sprague applied for this insurance he informed Jones that he was indebted to Berrick in the sum of $4,000 and interest, which was secured by the mortgage above mentioned; and that he was indebted to the First National Bank by the deed to Haskett, its cashier. He also stated to Jones that, subject to the Berrick mortgage and the deed to Haskett, he was the owner of the lot and the buildings thereon, and stated that he desired to effect an insurance upon the buildings in such form that, in case of loss, the Berrick mortgage would be first paid. He then went with...