Farmington Village Corp v. Pillsbury

This was a suit upon coupons for semi-annual interest on the bonds of the Farmington Village Corporation, and among the defenses set up was one to the effect that the plaintiff was not a bona fide holder of the coupons in suit, but that they were placed in his hands merely for the purpose of bringing a suit in the circuit court of the United States. The case was tried by the court without the intervention of a jury, and comes here with a special finding of facts, and a certificate of division of opinion between the judges holding the court upon certain questions arising at the trial. Among the questions certified was this: 'Whether the plaintiff can maintain an action in this court upon the coupons declared upon, the bonds or instruments to which they were attached not being assigned to him, but having been issued to and always held by citizens of Maine.'

The facts applicable to this question, which appear in the special findings, are these: The bonds from which the coupons were cut were issued by Farmington village under a private statute passed by the legislature of Maine authorizing the village corporation to raise money to aid in the extension of the road of the Androscoggin Railroad Company to some point within or near the limits of the village. The bonds were issued by the assessors and treasurer of the village to a committee of citizens, who were authorized to sell and dispose of them for the purpose mentioned in the statute. Before the committee received any of the bonds from the assessors and treasurer, and before July 1, 1870, which was the date of the bonds, Jonas Burnham and 11 others, all citizens, owners of property subject to taxation, and tax-payers in the village corporation, filed a bill in equity in the supreme judicial court of the state of Maine, in Franklin county, against the railroad company, the assessors and treasurer, and the committee of the village, to enjoin them from issuing the bonds, on the ground of a want of authority of law for that purpose. This suit was entered at the July term, 1870, of the court, and held under advisement until the third of August, 1872, when the bill was dismissed without prejudice. After this, on the twelfth of August, 1872, other tax-payers filed another bill of the same general character against the same defendants and the village corporation to obtain substantially the same relief. To this bill the village corporation filed an answer, and the railroad company a general demurrer. The case was heard by the court as the July term, 1873, and kept under advisement until August 27, 1878, when a decree was rendered sustaining the bill and granting the injunction prayed for. The opinion of the court is reported in 70 Me. 515, and is to the effect that the statute authorizing the village corporation to aid the extension of the railroad was unconstitutional and void. This opinion was concurred in by only four of the eight judges composing the court at the time of the hearing. One judge, who sat in the cause, died while the opinion was in his hands for examination, and his death made the four judges a majority of the court at the time of the decision.

Notwithstanding the pendency of the original suit, the bonds were put out, and, with the exception of a few only, were bought by citizens of Farmington and members of the village corporation. The coupons in suit were collected from various holders of the bonds, all residents of Farmington and citizens of the state of Maine, about May, 1880, and transferred to the plaint ff, a citizen of Massachusetts, separate from the bonds. The plaintiff gave his note and agreement for these coupons to the agent of the holders who had taken them to dispose of, as follows:

'$500.

BOSTON, May 5, 1880.

'For value received I promise to pay to P. Dyer five hundred     dollars in two years, with interst.

E. F. PILLSBURY.'

'BOSTON, May 5, 1880.

'Whereas, I have this day bought of P. Dyer, of Farmington,     coupons of the Farmington village corporation to the amount      of $7,922, and given him my note for the same; as a further      consideration for said coupons, I agree that, if I succeed in      collecting the full amount of said coupons, I will pay him      fifty per cent. of the net amount collected above said five     hundred dollars, and pay him as soon as I collect the money      from said corporation.

'E. F. PILLSBURY.'

This suit was begun July 1, 1880.

''Wm. L. Putnam'', for plaintiff in error.

''Chas. F. Libby'', for defendant in error.

[Argument of Counsel from pages 140-141 intentionally omitted]

WAITE, C. J.

By the original judiciary act of September 24, 1789, c. 20, (1 St. 73,) it was provided (section 11) that no district or circuit court should 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' The same act provided (section 12) for the removal of suits from a state court to the circuit court by a defendant, and he was required to file his petition for such a removal at the time of entering his appearance in the state court.

By the act of March 3, 1875, c. 137, § 1, (18 St. 470,) section 11* of the act of 1789 was changed so as to provide that the circuit and district courts should not have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant and bills of exchange. By the same act, sections 2 and 3, removals could be effected by either party, when the necessary citizenship existed, if a petition was filed therefor in the state court, before or at the term at which the cause could be first tried, and before the trial thereof. This last act also contained this provision, (section 5:) 'If, in any suit commenced in a circuit court, or removed from a state court, * * * it shall appear to the satisfaction of the circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a suit or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the state court from which it was removed, as justice may require, and shall make such order as to costs as shall be just; but the order of the circuit court, dismissing, or remanding said cause to the state court, shall be reviewable by the supreme court on writ of error, or appeal, as the case may be.'

Under the act of 1789, the jurisdiction of the courts of the United States, in suits by assignees of choses in action, was confined within narrow limits, and there was comparatively little danger of collusion, to create a case of that character cognizable by those courts, because, if the owner of the claim could sue in his own name, there would ordinarily be no motive for transferring it to another to bring the action. In that act, promissory notes and inland bills of exchange, the form of negotiable securities most used in the transaction of ordinary business by citizens of the United States, were included in the prohibition of suits by assignees.

The subject of colorable transfers to create a case for the jurisdiction of the cou ts of the United States was presented for the most part in suits for the recovery of real property, when a conveyance had been made by a citizen of the state in which the suit must be brought to a citizens of another state. At a very early day it was held in this class of cases that the citizenship of the parties could not be put in issue on the merits, but that it must be brought forward at an earlier stage in the proceedings by a plea in abatement, in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such a plea to the jurisdiction. De Wolf v. Rabaud, 1 Pet. 498; Evans v. Gee, 11 Pet. 83; Sims v. Hundley, 6 How. 5; Smith v. Kernochen, 7 How. 216; Jones v. League, 18 How. 81; De Sobry v. Nicholson, 3 Wall. 423. And upon the question of transfer it was uniformly held that, if the transaction was real, and actually conveyed to the assignee or grantee all the title and interest of the assignor or grantor in the thing assigned or granted, it was a matter of no importance that the assignee or the grantee could sue in the courts of the United States, when his assignor or grantor could not. A suit by such an assignee or grantee would present, in reality, a controversy between the plaintiff on the record and the defendants. McDonald v. Smalley, 1 Pet. 620; Smith v. Kernochen, supra; Barney v. Baltimore, 6 Wall. 288. But it was equally well settled that if the transfer was fictitious, the assignor or grantor continuing to be the real party in interest, and the plaintiff on record but a nominal or colorable party, his name being used only for the purpose of jurisdiction, the suit would be essentially a controversy between the assignor or grantor and the defendant, notwithstanding the formal assignment or conveyance, and that the jurisdiction of the court would be determined by their citizenship rather than that of the nominal plaintiff. Maxwell's Lessee v. Levy, 2 Dall. 381, S.C.. 4 Dall. 330, decided by Mr. Justice IREDELL and PETERS, J., in the Pennsylvania circuit, in 1797; Smith v. Kernochen, supra; Barney v. Baltimore, supra.