Zimmerman v. Carpenter

• Decision Date: 31 January 1898
• Docket Number: 275.
• Parties: ZIMMERMAN v. CARPENTER.
• Court: U.S. District Court — District of South Dakota

84 F. 747

ZIMMERMAN v. CARPENTER.

No. 275.

United States Circuit Court, D. South Dakota, Southern Division.

January 31, 1898

T. B McMartin, for complainant.

Davis Lyon & Gates, for defendant.

GARLAND District Judge.

The complainant brings this action for the purpose of charging the estate of Charles C. Carpenter, deceased, with the sum of $12,300, being the amount assessed by the comptroller of the currency upon 123 shares of stock in the Dakota National Bank, of which said Charles C. Carpenter was, in his lifetime, the owner. The cause has been submitted upon pleadings and proofs, from which the following facts appear On the 16th day of May, 1895, Charles C. Carpenter, at Sioux Falls, S.D., died testate, and thereafter such proceedings were had in the county court of the county of Minnehaha S.D., that on June 17, 1895, said defendant, Frances G. Carpenter, was, by said county court, duly appointed executrix of the estate of said Charles G. Carpenter, deceased; and, having duly qualified, has since that time acted as said executrix. That on said 17th day of June, 1895, said county court, by order duly made, fixed the time in which all persons having claims against the estate of said Charles C.

Carpenter, deceased, should present the same to the said executrix for allowance or rejection at six months from the date of the first publication of the notice to creditors, which date of first publication was June 28, 1895. That said notice to creditors was duly published, as required by law, and a decree entered by said county court to that effect. At the time of the death of said Charles C. Carpenter, he was the owner of 123 shares in the Dakota National Bank, then doing business in Sioux Falls, S.D., which shares came into the possession of the defendant as executrix of the estate of said Charles C. Carpenter, deceased. On November 23, 1896, said Dakota National Bank closed its doors, and thereupon the complainant was appointed receiver of the same by the comptroller of the currency, and having duly qualified, has since been acting as such receiver. On February 4, 1897, the comptroller of the currency made an assessment upon all the shares of the capital stock of the said Dakota National Bank of 100 per cent. upon the par value of said stock, and ordered the holders of said stock to pay said assessment on or before March 4, 1897, and further ordered complainant to take all necessary proceedings to collect said assessment. On April 3, 1897, complainant caused to be presented to the defendant, as executrix of the estate of Charles C. Carpenter, deceased, a claim for the sum of $12,300, duly verified by oath of said complainant; the said claim being the amount of the assessment made by the comptroller of the currency upon the shares of stock hereinbefore mentioned. On April 10, 1897, said executrix rejected said claim, and refused to allow it as a claim against said estate. That prior to August 28, 1895, defendant, as executrix, without any order of the county court of Minnehaha county, and without consideration, and in violation of her trust as executrix, caused the 123 shares of stock held by her as executrix to be transferred and assigned to herself individually, for the purpose of making it possible for said Frances G. Carpenter to act as a director of said bank.

The general jurisdiction of this court over this action arises from the fact that it is a suit of a civil nature, arising under the laws of the United States, wherein the matter in dispute exceeds the sum of $2,000 exclusive of interest and costs. Thompson v. Insurance Co., 76 F. 892. Act. Cong. March 3, 1887, as corrected August 13, 1888. At the hearing counsel for defendant moved to dismiss the action, upon two grounds: First. That the property belonging to the estate of Charles C. Carpenter, deceased, is under the jurisdiction and in the possession of the county court in and for the county of Minnehaha, state of South Dakota, in the due course of the administration of said estate, and no other court has any authority or jurisdiction to interfere therewith. Second. Complainant has a plain, speedy, and adequate remedy at law.

The full force of the first proposition may be conceded, and the still this action may be maintained. The object of this action is not in any way to interfere with the possession of the property belonging to the estate of Charles C. Carpenter, deceased, but simply to determine whether any liability has attached to said property by reason of the facts pleaded in the bill of complaint. When that question is determined, this proceeding is at an end. If determined favorably, then complainant has an adjudicated claim against the estate of Charles C. Carpenter. Wickham v. Hull, 60 F. 326; Parker v. Robinson, 18 C.C.A. 36, 71 F. 257. It is claimed that to take jurisdiction for this purpose would be a mere idle ceremony, as the comptroller has determined the amount of the assessment, and that determination is beyond dispute. It is true, that the assessment of the comptroller cannot be disputed, but in this case, upon demand, the executrix refuses to recognize the assessment as a claim against the estate of Charles C. Carpenter, deceased; therefore the complainant is compelled to go into a court of competent jurisdiction, and seek to establish the amount of the assessment as a charge against said estate.

The point involved in the second proposition was not brought to the attention of the court until the hearing. Where this is so, the court will not make a decree if there is a plain defect of jurisdiction, but the bill will be construed more liberally than if the point had been raised by demurrer. The cases of Kennedy v. Gibson, 8 Wall. 498, and Casey v. Galli, 94 U.S. 673, are cited to the effect that, where the action is to recover the full stock liability, the action must be at law. This undoubtedly is true, if there are no other facts existing, requiring the interposition of a court of equity. The same cases hold that where the action is to enforce only a portion of the full stock liability, the remedy may be in equity. The court, in the cases cited, did not intend to hold that in every case where the full amount of stock liability was sued for the...