JEFFRIES V. UNION MUT. LIFE INS.
able length. A suit was brought in this court, by an aa.m."in:. istrator named Jeffries, on a life insurance policy. The case went from this court to the supreme court of the United States, and the supreme court reversed this court on this proposition. The averment made in the application by the insured was that he was a single man and not a married man. This court held, in the light of the authorities as they were then supposed to exist, that that question should not be held as an absolute warranty, but, connected with the facts, to be submitted to the jury, whether it was a matter material to the case. The supreme court held the sharp doctrine that it was a warranty, and if he represented himself as single and was married, there could be no recovery. The case came back for trial and evidence was produced to show that the representation of the plaintiff was written down as an answer by the agent of the underwriter, he, the agent, supposing that to be the man's condition, without relying upon his statement or paying any attention to it. The matter came up for trial and the jury found for plaintiff, and the court set aside the verdict, a.s it did not think the testimony sufficient to establish the fact. A second trial was had-a fuller trial-and a verdict was again rendered for the plaiutiff, and the case was taken by the insurance company to the supreme court of the United States. In the ordinary course of decisions there this case would not have been reached, possibly, for some years. The counsel for the insured then, after oorrespondence "\\lith the insurance company, agreed to take what was about twothirds of the amount of the judgment, in round numbers. The proposition being accepted, thereupon counsel did receive the sum of money pursuant to the compromise, to-wit, the two-thirds. and entered satisfaction of the judgment. The question presented to the court is upon a motion to set aside that entry of satisfaction, first, because a counsel employed to prosecute a case has no right to compromise it. Such is the view of the supreme court of the state of Missouri; but the rulings are largely in conflict. But this case has another aspect: the original plaintiff entered into a spe-
offie contract-which I certainly do not think commendablewhereby these attorneys, (two in number,) should prosecute this extremely doubtful claim; they to receive a certain portion of the proceeds, with full power to compromise as they should please. And they prosecuted under these doubtful circumstances, and finally compromised, and, having compromised, the defendant company has paid this money. It is contended that the attorneys thus compromising did an act which is void in itself, and that without the money paid being returned, to-wit, about $9,000, the compromise may be declared void, and execution be issued for the whole amount of the judgment. I am not disposed to go into an examination of the authorities, but merely state, for the purposes of the determination of this motion, that here express authority was given with regard to the matter; that this claim wa" very doubtful, and that in my judgment the compromise was rightly made. I heard the case three times, and in my opinion plaintiff would not have gotten a sixpence before the supreme court. I think that the attorney acted, so far as money considerations are concerned, very wisely. Should this entry be now set aside? On what ground ? That the entry was· made during a term of court on the record instead of in open court? It so happens that there is no express statute of the United States as to entering satisfaction; but it is claimed that by analogy we might follow the state statute, and if we follow that practice, this entering of satisfaction may be made in open court or in vacation, on the margin of the record. But if, on the facts stated, this entry is found to be void, the court would permit the party to appear in open court at this moment, merely to cure a technical error. Now, the difficulty arises on the face of the contract. Under the old common law such a contract would not have been permitted. I think it would be better if the old common law was retained with regard to it; but such is not the law, unfortunately. Parties, at their own expense, may pursue a doubtful demand, and, when the result. is accomplished, the contract is upheld. But it i8 said again. t1l'lt. t 1 n]'i!r:rml plaintiff 18
OOUNTY OJ' BA.LLS.
died pending the proceedings, and a revivorship was had in the name of the administrator de bonis non; that this new plaintiff did not enter into any contract or ratify the old one; and that, therefore, the power given to the attorney to compromise could not be considered as applicable to matters as they stood on final hearing. Now, I suppose, when a contract is made by a party he who sU:lceeds in interest to him is bound by the original contract. But this motion is against a defendant that has paid between $9,000 and $10,000, to declare all the proceedings had under the circumstances void, and hold that company liable to execution for the whole amount of the original judgment; a part of the agreement to compromise being that the defendant insurance company should dismiss its writ of error in the supreme court of the United States, which it has done. How can you put this company into its original position? It must lose this amount of money; is out of the supreme court, and is remediless by the fault of the original plaintiff, and the contract which he chose to enter into. Such would be neither justice nor right, without going into the extreme proposition as to whether an attorney employed in the case has a right to compromise it. In this case there was a. specific contract, and I overrule the motion.
COUNTY OF RALLS.
(Circuit Court, E. D. Mi88ouri.
JURI8DICTION ACTION AGAINST COUNTY -
March 27, 1880.)
REV. ST. OF ItIrSSCURI,
5359.-Section 5359 qf the Revised Statutes of the state of Missouri, which provides that" all actions whatever against any county shall be commenced in the circuit court of such county," etc., does not deprive the federal courts of jurisdiction in an action against a county of such state brought by the citizen of another state.
!'emurrer to plea to the jurisdiction. Ove'l'aU ft Judson, for plaintiff. Ffenry A. Ounningham, for defendant.
MCCRARY, J., (orally). This is a suit on bonds issued by the county of Ralls on the tenth day of February, 1870. Plaintiff is a citizen of the state of Indiana, and brings suit upon the bonds in this court. There is a plea to the jurisdiction. No question is made as to the citizenship of the parties, nor is it claimed that there is anything to bar the jurisdiction of this court except a recent statute of the state of Missouri, which is found in section 5359 c£ the Revised Statutes of Missouri of 1879, providing as follows: "All actions whatsoever, against any county, shall be commenced in the circuit court of such county, and prosecuted to final judgment and execution therein, unless removed by change of venue to some other county, in which case the action or actions so removed shall be prosecuted to final judgment and execution in the circuit court of such other county." This is an amendment to a previous statute, which read as follows: "All actions, local or transitory, against any county, may be commenced and prosecuted to final judgment in the circuit court of the county against which the action is brought." 1 Wagner St. 408, § 4. In a case against Lincoln county, brought before this court sometime ago, there was a plea to the jurisdiction, under the original statute above quoted, which waH overruled, (7 Cent. Law J. 264,) Judge Dillon expressing the decided opinion that ,the statute did not take the case out of the jurisdiction of this court. He further said that if the statute was intended to have this effect it would, under the ruling in the case of Insurance Co. v. lvIorse, ::30 Wall. 445,be unconstitutional; and he added: "We cannot assent to the conclusion that it is within the power of the. state to create political bodies capable of contracting debts with citizens of other states, and yet privileged against being. compelled to pay those obligations by suit in the national courts." It will be seen that no stress was placed upon the fact that the language of that act was permissive, using the word "may" instead of "shall," but the ruling was put upon the ground that the jurisdiction of the federal courts cannot be interfered with by state legislation. The recent statut e, if