(Oircuit Oourt, 8. D. Georgia, W. D. :May 16,1882.)
1. LANNING V. LOCKETT; 10 FED; HEP, 451, affirmed. 2. ISSUABLE DEFENCE-,CONSTITUTION OF GEORGIA. . A plea dellying the plaintiff's title, to the note sued on and right to sue ',.thereon is, ,an "issuable plea," within the meaning of the constitution of . 'Georgia; 'and where evidence was <;>ffered by both 'parties upon the trial of suell plea (no other being interposed) a verdict of the jury finding for ,the plaintiff the amount due on the note will not be set aside as violation of the provision in the,constitution: "The'l court shall judgment without the verdict, of a jury in all civil cases founded on unconditional contracts in writing where an issuable d'Cfence is not filed uilder oath or affirmation." 3. STA'l'E LAWS, HOW FOLLOWED-IsSUES Oll' FACT TRIED BY JURY. ,-While the Upited courts, in cases at law,Jollow as near 88 practicable the practice, pleading, forms, and, modes of of the state cc;>urts of , , u'record;'yetthe constitution and laws of the United Htates reqnire all issues of , fact in colJ1mon.laWC88l!s to be determined by 8 jury, the same is waived ',' iI'H'vriting.by thepartills.
the case 10 ,district The m,ovant,s to the rulings of the court whio.b are there reported, 0J,lthe of a ,91 bank to indorse,<to 'the of etc. It is unneceS7 s,lJ'ry refer .to. thlin to say that tl),ey by who announced ,tho . tepif'lion J '. .; I." ,,: the following " _.I: :, opinion. ,';" , ',', , ' ,'Willis A·. and Lyon, <t Gresham, (or, m()vants. 'Bacori, .contra, i, ': " ., . plaintiff in this case, a. citizen of the state of New, brought this action the defendant, a residentcit:of tliis.division district of alleging herto be b:o,l,der and of ,s. p,rop:lissory note execute.d by the d'eferidant in 1879, to Bank& iTrllSt Company, payable December 1, 1879, with interest after maturity, which note, being negotiable by the law merchant, the said Bank & Trust Company, for a valuable consideration, negotiated and transferred, and by written indorsement assigned, to plaintiff, whereby defendant became bound to and promised to pay plaintiff the amount thereof, etc.; concluding with the usual allegations and prayer in such cases. The defendant appeared and filed a plea. to
l1'*I>: REP. ,45l.,
*Reported by H. B. Hill, Esq., of the !1acon unr.
the jurisdiction,' on the ground that the Macon, lhtik& Tiust pany was a citizen of this division of the district, and its assignee could not sue in the United States courts. To this a demurret was filed, which on hearing was BUBtainedby the court,the note Buedoti having been executed since the act of 1875. The defendant then filed what he called a plea and answer, in substance aB follows:
_ . ' ',I:'
"And for plea and answer makes it appear to the court that said suit not really and substantially involve a, dispute or conttoversypl'operly within the jurisdiction of said circuit court, and the saidplai'ntiff has no tial interest in the result of said suit on said promissory note sued on; but that the name of said plaintiff is used by the Macon Bank & Trust Com: pl'ny, a corporation residing in the said southern district, for the p!-upos!'l of creating a suit cognizable in circuit court; all of which defendant is ready to verify, and puts himself on the country." ' " ' ":
Afterwards defendant filed, an' amendment to the' foregoihg,sei. ting forth more fully'the follO'\Ving: That the plaintiff is not the owner orsaid note, neither now, before' said Buit WRS lJOmmenoed, since that time, at that' time, nor e'Ve:r was, either in facet brin law; that the Macon Bank & Trust Company is now, and' was at 'and before the commencement of the suit, the exclusive bwner' of said note; that the assignment,of said note to said plaintiff was colorabie and fraudulent, solely to give this court jurisdiction; that the plaintiff has no interest whatever in' sala note, or the money be aue thereon, but is prosecuting said suit solely for the' of said ,Macon Bank & Trust Company. The said' amendtnentcohl eludes by alleging that the court haEi no jurisdiction,nnd goingtb the country. Both the original atld.'amendment, thoughpleaded<by counsel, are verified by the defendant in person. 'Totheae; pleas or defences plaintiff filed a general demurrer, which, on 'hearing,' was overruled because it was a general deIl1urrer,and not a special demurrer. Thereupon, at the last term of the court, a jury was and a trial had on said pleas. The jury foondfor the plaintiff in. the full amount of the note, principal and interest A new trial, on very many grounds, was then prayed for,and the motion tinued to this term. All the foregoing proceedings had before the honorable trict judge presiding in the circuit cotIrt. At this term the motion f6r a new trial has been heard before the court, the circuit judge pr6sid,itlg. We have carefullyexammed the pll:ladings in tbe'caseHl'heevidence submitted to the jury, the charge of ,the judge to the 'jury, the exceptions to the judge's clYarge and refusals to cilltrge,andthe verdict
of the jury. We find that the evidence supports the verdict; that the judge's charge, if prejudiciall:\.t all, was in favor of the defendant; and that in refusing to charge as defendant's counsel requested the judge was correct. A.nd we conclude that none of the many grounds alleged by the defendant's counsel in support of the motioll for a new trial are well taken. The only Olle that needs any discussion at all, and seemingly the only one relied upon by the learned connsel for the defendant,-at least, the only one su,Pported by any whether the case was at issue 00 the rp.erits; whether there, any issu!tble defence; whether the aforesaid plea as amended was a ,plea in abatement or a plea in bar. The plea denies that the plaintiff is the owner of the note sued O'U; that she has any title to!it whatever: that she has any in it, or in the money alleged to be due upon it; .and that she 'has no right tq:,recover it. True it i/J' that othe:nnattersal's.alleg.ed, R,nd other conclusions therefrqrp. dra.wn, but still the :case'"sbows, using language, of the surxemeeourt .in Pendleton .. 00llnty v. Amy, 18 Wall, 303, "tha,t it was material to thephtintiff',s:caseto avera.s she that she was the owner,: (bearer,) andtbe plea too.k issue with this averment. It denied the title of the plaintiff, or her right of action, and, though.faultyin form, in substance it amounted to a defence." The counsel for defendant seem to labor under theimpressionthat their plea was one solely to tha jurisdiction of the court,and it, is likely that such a plea was .allthey intended. But it is doubtful whether, in any event, ,the matters relied upon by them, to-wit, a. simulated transfer to give theconrt jurisdiction, can beetherwise pleaded than as a defence to the action. The jurisdiction of this court depends upon the amount involved, the citizenship and the character of the parties, and the nature of the demand or cause of action. ' In suits upon promissory notes negotiable by the law merchant the jurisdiction depends solely upon the amount involved and the citizenship of the parties. In a controversy between a citizen of New York and a citizen of this district, to reCMver the amount of a promissory note of over $500 negotiablE! by the law merchant, this court has jurisdiction to hear and determine the rights of the parties. If, in any such suit at any time, after it has. been brought, it shall be mlitde to appear to the satisfaction of the court that such. suit does not really and substantially involve a controversy properly within the jurisdiction of the court, or that the parties have been improperly or collusively made or joined for the
J,ANNING V. LOCKETT.
purpose of creating a case cognizable in the United States courts, the court dismisses the suit, because, having jurisdiction to determine the rights of the parties, it determines that the party dismissed has no right. But be this question of raising the points allowed to be made against an action under the sixth section of the act of 1875, whether by plea to the jurisdiction or by plea in bar, as it. may, it seems to be clear that any plea that denies a material averment of the plaintiffone that is material for him to aver and prove in order to maintain his action..-is, of necessity, an issuable defence. It has been held that in a suit brought by an a denial of his capacity· as such administrator may be pleaded in. par. 3ee 9 Wall. ·394. And the reason may be;eltsilyseen: if he is not administrator he has no right to recover at all; his action is forever defeated. L; The c.ase of Le8terv. Ins. 00. 55 Ga.. 4713, cited by cou:tll"lel for;defendants, was'a case where no appearance whatever was made by the defendant; and the point decided was withre!erencatothe power of a jury under the constitution of the state of Georgia. Code, § 5091. The case of Jordon v. Corter, 60 Ga. 443, is on the same point. But it is well to notice that while'in the United States courts, in cases at law, we follow as near as practicable the practice, pleadings, and forms, and modes of proceeding, of the state courts of record, yet the constitution and laws of the United States require all issues of facts in common-law cases to be determined by a jury, unles.iJ the same is waived in writing by the parties; and the case of Le8ter v. In8. Co. supra,which the supreme court of Georgia decided to have been illegally submitted a jury, would in this court have been necessarily submitted to a jury to assess the amount of damages claimed. The case of Sheppard v. Graves, 14 How. 505, criticises and reprehends loose and incongruous practice, with all of which we agree as applicable to this case but we have to do here as the supreme court did there-take the pleadings as the parties have made them, and determine the rights of parties thereunder. That case shows nothing inconsistent with our views in this case. In conclusion, we notice that counsel for both plaintiff and defendant must have understood that the case was tried by the jury on its merits. In overruling the demurrer to the pleas the judge said: "Looking to the plea and amendment, it cannot properly be called a plea to the jurisdiction, though possibly it does contain some of the v.ll,no.8-52
. FEDERAL .ttEPOR1'.ER.
ingredients of a plea of· that kind; yet, taking it as a whole, it is in my judgment in effect a plea in bar of the action, and I shall treat it as a plea in bar." And in the written memorandum of the charge to the jury we find the following: "As to the form of the verdict, I agreed with counsel for plaintiff and defendant that if the juryfound against the pleas' of defendant the verdict should be in favor of plaintiff against defendant for principal and interest on note; and that if the jury found in favor of the pleas, the verdict should be, 'We find in favor of defendant's pleas i'" and no objection was made to this instruction. And finally there is no showing made that the defendant has any just defence to the action in order to move the discretion of the court to relieve him of the verdict· and judgment againt him. The motion for a new trial is overruled and discharged· .Judge ERSKINE, the district judge, concurs in this opinion.
See Tal/lor v.¥,psilanti, notes of cases, post.
CHARTER OAK LIFE
(Ol'rcui' Cour', E. D.
May 18; 1882.)
Where A. and wife joined with B. in the execution of an instrument by which the two former cdnveyed to the latter a certain tract of land in fee, and the latter, in' consideration of said conveyance, covenanted not to convey said during the grantors' lives, l!ond also covenanted to maintain A. and. wife "during their natural lives, 'with good and suffiClent clothing and food, in sickness and in health, furnish them with a horse and cart, and give them at all times their lives.i":and frce afcess to the property conveyed for their own where the. same parties subsequently executed another deed, in which, after referring to the former one, and declaring that the covenants therein contailied were found to operate to the prejudice of said parties, the said B., for tlliat and divers other good reasons, did abandon, relinquish, and quitclaim to all the property in the aforesaid deed described unto the said A., and the said A. and wife did thereby" release and discharge the said B. from each and everyone of the covenants by him entered into in 'the aforesaid deed," and' B. llubsequently bought p.art of thesame property from A,: hela, that notwithstanding the fact that the word" heirs" bad not been Ilsed in the latter deed, it had reconveyed to A. all the interest in said land which had been conveycd to B. by the ' " former one.
Suit in Ejectment·
· Reported by B. F. ltex, El:lq., of the St. Louis bar.