BARTLEY V. HAYDEN.
BARTLEY, Treasurer, v. HAYDEN. (Circuit Court, D. Nebraska.
FEDEllAL COURTS BANK.
May 26, 1896.)
SUIT AGAINST HECEIVER OF A NATIONAL
A suit, brought against the receiver of an insolvent national bank, as such, to establish a claim of the plaintiff as a depositor in the bank, is a case arising under the laws of the United States, of which the United States circuit court has jurisdiction, irrespective of the citizenship of the parties.
74 FEDERAL REPORTER.
it is claimed by the plaintiff that he owes certain duties to the plaintiff as a creditor of the insolvent bank. It is certainly clear from the allegations of the petition that the plaintiff bases his claim to relief against the defendant upon the fact that the defendant is the receiver of the Capital National Bank, and upon the duties and obligations which, it is assumed, are created by the position occupied by the defendant. The plaintiff could not proceed one step in the case, nor ask any relief Whatever, unless it is made to appear that the defendant is in fact the receiver of the Capital National Bank duly appointed to' that position under the provisions of the laws of the United States. The theory of the plaintiff's case is that it is the duty of the defendant, as receiver of the insolvent bank, to allow the claim of plaintiff as one of the debts provable in the matter of the insolvent bank. 'Vhat the duty of the defendant is, as the receiver, is a question which depends upon the laws of the United States, which create the position and define the Q.uties thereof. Upon this question of jurisdiction, the point is, not whether the plaintiff by the averment in his petition shows himself entitled to relief against the defendant, but whether the petition shows that the plaintiff in fact bases his claim for relief, whether the same be well or ill founded, upon the provisions of the laws of the United States. In the latter case jurisdiction exists in this court, even though it may also appear that the plaintiff has failed to state a muse of action against the defendant. In support of the demurrer it is argued that the real question in controversy is whether the Capital National Bank was in fact indebted to the plaintiff, and it is true that that question may be putin issue if the defendant answers the petition; but proof alone of the fact of such indebtedner.,'1 would not make out plaintiff's ease, nor entitle him to the relief prayed for. As already said, the plaintiff bases his right to the relief prayed for upon the ground that the defendant is the receiver of a national bank, appointed to that position under the laws of the United States, and the duty which the plaintiff seeks to enforce against the defendant arises under the laws of the United States. The principle recognized boY the supreme court in the case of Bock v. Perkins, 139 U. S. 628, 11 Sup. Ct. 677, is the one that is decisive of the question now under consideration. In that case Bock sued Perkins, Thrift, and Hopkins for the value of certain personal property which he alleged the defendants had wrongfully taken from his possession; the suit being brought in a state court. The defendants petitioned for a removal of the case into the federal court, on the ground that Perkins was the United States marshal for the Northern district of Iowa, Thrift and Hopkins being his deputies; that the goods in question had been seized by defendants in their official capacity upon a writ of attachment issued from the United States circuit court for the Northern district of Iowa, against H. P. Lane. The real point in controversy, as clearly appears from the report of the case, was whether the goods seized had passed by assignment to Bock, or whether the title thereto remained in Lane. The supreme court held that the case was rightfully removed to the federal court, because the application for removal showed that the
IN RE WOERISHOFFER.
1.831s of the controversy was whether the marshal had properly performed his duty as an officf>r of the United States, a question depending upon the laws of the United States. In the case now before the court, the IJlaintiff avers in his petition that the defendant is a receiver appointed under the laws of the United States, and in ef· fect charges that, as receiver, the defendant has not performed the duty imposed upon him by the laws of the United States, in that he has refused to allow plaintiff's claim. It thus appears that the case of the plaintiff, as it is made to appear upon the face of the peti· tion, is one arising under the laws of the United States; and, as the amount involved exceeds $2,000, it is clear that the matter is one within the jurisdiction of this court. It is further urged, in support of the demurrer, that the suit ought to be in equity and not at law, on the ground that a court of law cannot grant the relief sought. The rule in federal courts is that the equitable jurisdiction cannot be invoked if an adequate remedy can be had at law, and there is nothing in the questions of fact involved in this case or in the character of the relief prayed for that disables a court of law from taking cOb'1lizance of the case. The demurrer is overruled.
III re WOERISHOFFER et nJ. (Circuit Court of Appeals, Fifth Circuit. May 23, 180G.)
PRACTICE ON ApPElAI.-PARTTES-SUPERSEDElAB.
It. and S., allegIng tlJeDlselves to COlllpQSe the firm of W. & Co., applled to the circuit court of apIJeals for an order stayilJ;; tlJe ex"eu lion of six several decrees rendered in a cause in the circuit cour-t, on tlJe ground that they had taken an appeal and given bond. The record did not disclose that they were parties or privies to the suit. alllJougb it showed that certain parties had been allowed an appeal from a part of the de· crees, and illat lat and after the term, lin appeal bond nliDling 'V. & :!", Co. as a princip.al had been approved, reciting that W. & Co., aIllong others, "have prosecuted an appeal to reverse the decree." lleld. that as tbe bond did nQt show the names of the individuals composillg; Ule !irm, nor tbat 'V. & Co. was a party or privy, nor that it was approved dUl'ing the term, nor any particular decree apppalec1 from, nor any citation, the applicants had not taken any appeal, nul' given any such bond as to Qperate as a supersedeas, and tbat ilie order applied for should be denied.
S. W. Jones and E. B. Kruttschnitt, for petitioner. W. C. Oliver, for respondent. Before PARDEE and McCORMICK, Circuit Judges, and SPEER, DistrictJudge. PARDEE, Circuit Judge. F. C. Renner and H. Summerhofl', alleging themselves to be citizens of the state of ]I; ew YOI'k, and composing the firm of Woerishoffer & Co., apply to this court for an order directed to the circuit court for the Eastern district of Texas, prohibiting the execution of certain decrees rendered in that court on November 4, 1894, and on the 25th, 26th, 28th, 29th, and 30th of October, 1895, respecthell.J and on the 12th of November,