Wyoming Ry. Co. v. Herrington

• Decision Date: 17 October 1947
• Docket Number: No. 3480.,3480.
• Citation: 163 F.2d 1004
• Parties: WYOMING RY. CO. v. HERRINGTON.
• Court: U.S. Court of Appeals — Tenth Circuit

163 F.2d 1004 (1947)

WYOMING RY. CO. v. HERRINGTON.

No. 3480.

Circuit Court of Appeals, Tenth Circuit.

October 17, 1947.

A. G. McClintock, of Cheyenne, Wyo. (Ellery, McClintock & Gray, A. G. McClintock, and Norman B. Gray, of Cheyenne, Wyo., on the brief), for appellant.

Pierpont Fuller, Jr., of Denver, Colo. (William V. Webb, of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Cass M. Herrington, an attorney at law with offices in Denver, Colorado, instituted in the United States Court for Wyoming this action against Wyoming Railway Company, a corporation owning and operating a railroad between Buffalo, Wyoming, and Clearmont, Wyoming, a distance of approximately twenty-nine miles, and E. V. Kelly, vice-president and general manager of the corporation, to recover judgment for professional services rendered. The cause was tried to the court without a jury. The action was dismissed as to the defendant Kelly, and judgment was entered against the defendant corporation. For convenience, reference will be made to the parties as they were denominated in the trial court.

The jurisdiction of the trial court is challenged. It was alleged in the complaint that plaintiff was a citizen of Colorado; that the defendant railway company was a corporation organized under the laws of Wyoming; that the defendant Kelly was a citizen of Wyoming; and that the matter in controversy exceeded the sum of $3,000, exclusive of interest and costs. And it was further alleged that the services rendered were of the value of $5,500; that $500 had been paid thereon; and that the balance due was $5,000, for which judgment was prayed. Section 24 of the Judicial Code, 28 U.S. C.A. § 41, provides in material part that the district courts of the United States shall have original jurisdiction of all suits of a civil nature, at common law or in equity, between citizens of different states where the matter in controversy exceeds $3,000, exclusive of interest and costs. Diverse citizenship is admitted, but it is contended that the claim was merely colorable in amount for jurisdictional purposes. It is the well established rule that the amount claimed in good faith in the complaint is the test for jurisdiction, so far as that is dependent upon the amount in controversy. Groundless or fictitious claims obviously set up for the purpose of swelling the claim on the face of the complaint to an amount within the jurisdiction of the court fail of their purpose. And where it appears to a legal certainty from the face of the complaint that the claim is in reality for less than the jurisdictional amount, the suit does not involve a dispute or controversy properly within the jurisdiction of the court. But the inability of plaintiff to recover any amount adequate to give the court jurisdiction does not show bad faith or oust the court of jurisdiction. Neither does the fact that the complaint discloses upon its face the existence of a valid defense to the claim take the case outside the jurisdiction of the court. It is only where it appears to a legal certainty from the face of the complaint that the plaintiff cannot recover an amount within the jurisdiction of the court, or where it appears from the proof that the plaintiff never was entitled to recover that amount, and that the claim is merely colorable for the purpose of conferring jurisdiction, that a suit of this kind will be dismissed for want of the requisite amount in controversy. Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845; Kimel v. Missouri State Life Ins. Co., 10 Cir., 71 F.2d 921; Gray v. Blight, 10 Cir., 112 F.2d 696, certiorari denied, 311 U.S. 704, 61 S.Ct. 170, 85 L. Ed. 457. It does not appear to a legal certainty from the face of the complaint in this case that plaintiff is not entitled to recover an amount within the jurisdiction of the court. Neither does it appear from the evidence that the claim is fictitious and colorable for the purpose of conferring jurisdiction. Therefore the attack upon the jurisdiction of the court is without foundation.

The judgment is attacked on the ground that while the claim was presented and tried on quantum meruit, disposition was made of the case on the theory that the defendant had breached a contract of employment and should suffer damages for the breach. The contention misconceives the basis on which the court made disposition of the case. The court did find that the defendant took certain action in violation of the terms of plaintiff's employment, but that finding had relation to the question whether plaintiff was warranted in declining to...