Parker v. Ormsby

L. C. Burr, for appellants.

Water J. Lamb, for appellee.

By an act of congress approved February 25, 1889, it was provided that in all cases where a final judgment or decree shall be rendered in a circuit court of the United States, in which there shall have been a question involving the jurisdiction of that court, the party against whom the judgment or decree is rendered shall be entitled to an appeal or writ of error to the supreme court of the United States to review the judgment or decree, without reference to its amount; but, in cases where the decree or judgment does not exceed the sum of $5,000, this court is not to review any question raised upon the record except such question of jurisdiction. 25 St. 693, c. 236.

This case comes here under that act. The question of the jurisdiction of the circuit court, in which this suit was brought, arises out of the following facts: C. M. Parker executed at Lincoln, Nebraska, September 7th, 1886, his promissory note for $2,000, payable on the 7th day of September, 1891, with semi-annual interest from date at the rate of 8 per cent. per annum, the interest coupons and the note being payable to Walter J. Lamb or order, at the Lancaster County Bank, in Lincoln, Nebraska. It was provided in the note that any interest coupon not paid when due should bear interest at the rate of 8 per cent. per annum from maturity; and if any interest remained unpaid for 30 days after it matured the hlde r could elect to consider the whole debt due and collectible at once; also that, in case an action was brought for the collection of the note, the maker was to pay, as attorney's fees, a sum equal to 10 per cent. of the amount due. The note and interest coupons were secured by a mortgage given by Parker and wife upon real estate in the city of Lincoln.

Upon the back of the note and coupons were the following indorsements: 'Pay L. L. Ormsby or order. LANCASTER COUNTY BANK, LINCOLN, NEB. F. O. METCALF, Cashier. Pay Lancaster County Bank or order. I waive demand, notice, protest, and notice of protest, and guaranty the payment of the within note. W. J. LAMB.'

The whole debt having become due by reason of default in meeting the interest, this suit was brought, December 13, 1889, by Lucinda L. Ormsby against the appellants, Charles M. Parker and Emma Parker, his wife, and Martha L. Courtney; the relief sought being a decree for the sale of the mortgaged premises to pay the amount due, and for a personal judgment against Charles M. Parker for any deficiency remaining after the sale.

The bill avers that the plaintiff is a citizen of Illinois, and that the defendants are citizens of Nebraska. It contains, however, no averment as to the citizenship of Lamb, the original payee in the note and coupons, as well the mortgagee.

A decree was rendered finding due the plaintiff the sum of $2,520.80, the aggregate of the principal and interest of the note and coupons, and costs, including attorney's fees. The mortgaged premises were ordered to be sold to raise that sum.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.