,
REPORTE;R,
·
poration shall have the. privilege of transacting business within the state, such legal binding by the s1;;1te be upheld and enforced by the national courts, and this is the' extent of the principles an1il(luncedin,the{)ases referred to. But state legislation cannot restrict, impair, or limit the jurisdiction of the national courts, and the does not attempt to do so. The petlaltyimposed by the act, wall not, in my opinion, intended to apply, and doeR not apply, to a case1.ikethe present,where the business of·the bank in purchasing the bill ofexcnange, which constitutes the foundation for the institution of the suit against the defendants, was transacted outside of the state of California. :But, independent of these facts, it is proper to state that the authorities go still further, and support the proposition that state legislation of this character should be construed as having application only to the maintaining of suits in the state courts. In Union Trust 00. v. Rache8iR<r, etc:, R,Oo., ACHESON, J., in deciding a·similar question, said: . "The ¥ew York statutory provisions, f()1"bidding suit to be brought upon a jUdgment ,rendered in a. court of record of that state, without a previous order of tlie c6urt in which the original action was brought, g..-anting leave to bring the'new suit, must be held as intended only to regulate the course of' procedute hi the New York state courts. Such was the conclusion of Jndges DILLONalld LoVE in respect toa similar statute of the state of Iowa. Phelps 0' Brifiu. 2 Dill. 518. It is an established principle that state Ipgislation cannot in any wise impair or limit the jurisdiction of the courts of the United Fed. Rep. 610. · States." The to theplear .of abatement is $ustairied. . :, J" " . ' ,
STEPB:ENS 11. BERNAYB. (CWcmt Oourt. E. D. Missouri, E. D. Sepiemberll4, 1890.) DisTRICTCOURTs-JURISDIOTION-RECEIVBB OJ' NATIONAL BANK·
.Act Congo Aug. 13, 1888, ·(25 St. at Large;' 438,) confers the same jurisdiction on the district courts, and declares (section 4) that for jurisdictional purposes national banks shall be deemed citizens of the state in which they are located, but that this . proVision shall not affect the jurisdiction of the federal courts "in cases commenced . by tbeUnited States, or by the direction o.f any officer thel'eof, or cases for winding up the affairs of any such bank." that the district ,'ourt has jurisdiction of . an action by the receiver ,of an insolvent national bank to collect assessmenta on stock. Affirming 41 Fed,. Rep. 401.
law, brought by t,he United States, or any officer thereof authorized b.v law to sue. "
.Rev. St. U. S. §
the district QOurts jurisdiction of uallsuits at oommon
H. A. Lo6vy, for in error. .. , Geo. D. Rety'ftOlda,: U. S.Atty., for defendant in error. Before CALDWELL,. J. CA,LDWELL, J. This:is an appeal from the district court. See41 The error assigned is the district court had no ju,
643' risdiction'of the case. :The action is prought by the rectOliveroran insolvent national bank to collect assessments on stock. The stockholder died, and this suit is brought agaiDst his'tOlxecutrix. The first contentHm of the counsel for the defendant (the plaintiff in error) is that the district court bas no jurisdiction of the case at all. That the fourth subdivision of sectioti563 of the Revised Statutes of the United States, which says that the district court shall have jurisdiction of"all suits at common law, brought by the States, or any officer thereof authorized by law tosue,"hasbeEm repealed by the actof August 13, 1888, (25 St. at Large, 433.) That act does not repeal tbe dause reterredto, but, on the contrary, in terms, conferdon the district court jurisdiction in tbis dass ofcases. 'The fourth section. of the act provides that all national banks and association's established under the laws of the United States shaU, for the purpose of actionsby or them, real, personal, ormixed; and all suits in equity, be'(leemed citizens of the state in which they are respectively located, and in such cases the circuit and district court shall benot have jurisdiction other than such as they would have in tween individual citizens of the same state. The proviso is: . "The provision of this sMtionshali not be held to affect the jurisdiction of the courts of the United States, in cases commenced by the United states, or by the direction of any oftlcer thereof, or cases for Winding up the affairs of any such bank."
Now, this case falls within the provisions of that proviso in two or three respects. In the first place, it is a case for winding up the of the bank. It is a suit directed by an officer of the United States, and prosecuted by nn officer of the United States. The comptroller is an officer of the United States. He appointed the receiver, who is also an officer of the United States, and directed him to bring this sui,t. It was by counsel for the appellant that the WOld "commenced" in this proviso should be construed to mean" now pending," but obviously thnt is not its meaning. The difference between the langtrage in that proviso and that in the proviso of the fourth section is marked. Tbe proviso of the fourth section declares: "The prOVisions of this section shall not be held to affect the jurisdictionaf the courts of the United Stales in cases 'eommenced by the United Slates, or by directitm of any officer thereof, or cases for winding up the affairs of any such bank." '
The word "commenced" in this proviso is to be given a prospective, as well as a present, operation. The proviso is to he interpreted as if it read, "now pending or hereafter brought." It is further contended that the district court had no jurisdiction, because this suit is brought against an executrix, and that a suit brought against an executrix, seeking to establish against her, as such executrix, a debt incurred by her testator, is not a suit at law within the meaning of the act of congress; that it is something different from a suit at law, and therefore does not fall within the statute. Whatever learning there is on the subject of the administration of an estate by an ecclesiastical court that makes an action against an executor to establish a claim against
644
J'EDERAL REPORTER, vol. 44.
the estate of his testator something different, or more or less, than a lawsuit, has long been obsolete in this country, where suits against executors and admini'3trators are suits at law, or in equity, as the case may be, as much as if they were against one ·not acting in a representative capacity. Of course, under the old practice you could not sue an executor of a dead man and a living man together; but now, if two men make a contract, and one of them dies,. you may sue the survivor and 'the executor of the dead man jointly, and recover judgment against both of them in the same suit if you show yourself entitled to it. lt is further objected that the court has no jurisdiction, because all suits ag!linst executors or administrators should be prosecuted in the probate court of a state where the estate is being administered. We must not confound distinctions here. The dist;rict court of the United States to interrupt the regular has no probate jurisdiction, and is not and orderly administration of the estate of Mr. Bernays in the probate court ofth.e state. The administration of the estate belongs to the probate court of the state. But, if the receiver, or any other person having a right to sue in a federal court, has a claim against the estate of Mr. ,Bernays which the executrix is unwilling to allow, he is not bound to sue in the probate court to establish that claim; but if his 8tatU8 or citizenship is such as to entitle him to sue ina court of the United States, he has a right to come into that court and have the question of debt or no debt determined in that forum. Over that question the federal court has jurisdiction. But when, in suchsuit, judgment is recovered against the executrix, the federal court cannot do much more than to give to the judgment creditor .a certified transcript of the judgment to be filed in probate and there probated and classified in accordance with the state law,.unless the judgment was fora .preferred debt under the laws of the United States, The action of the district court in no way or manner interferes with the due administration of the estate in the probate court. It only settled the fact that the defendant, in her representative capacity as executrix of the estate of Mr. Bernays, was indebted to the receiver in the amount of the judgment on aCcDunt of the liability incurred by the testator in his life-time. The errors assigned are overruled,and the judgment affirmed. ' MILLER, Justice, concurs.
LA MONTAGNE V. T. W. HARVEY LUMBER CO.
645
LA
MONTAGNE 11.
T. W.
HARVEY LUMBER CO.
, L 2.
(O£rcuit Court, E. D. Wi.sconsin. January 5, 1891.)
REMOVAL Oll' CAUSES-NoN-RESIDENT DEFENDANTS-COUNTER-CLAIM.
The filing of a counter-claim in the state court by a non-resident defendant does not change his standing as defendant in the action,so as to preclude him from avail-· ing himself of the right to remove the cause to a federal tlourt, conferred on nonresident defendants by the removal act. Disapproving Lumber Co. v. Holtzoiaw, 89 Fed. Rep. 578. The claim of the plainti:tT can alone be considered as the "matter in dispute," within the meaning of the removal act; and, where plaintiff's claim is for less than $2,000, defendant's petition for the removal of the cause must be denied, though he has ilied a counter-claim against plainti:tT for a sum exceeding $2,000.
SAME-JURISDICTIONAL AMOUNT.
At Law. Motion to remand. The plaintiff, a citizen of Wisconsin, brought suit· in a state court against the defendant, a citizen of Illinois, to recover the sum of $1 ,004.07. The defendant made timely answer, pleading, inter alia, a counter-claim in the sum of $2,500, and simultaneously therewith filed in the state court its petition for the removal of the cause to the federal court. The suit being here docketed, the plaintiff moves to remand the cause, upon the ground that the matter in dispute is less than the jurisdictional amount. H. O. Fairchild, for the motion. W. H.Webste1', opposed. JENKINS, J. This court was without jurisdiction at the institution of the suit. It then involved an amount less than the amount requisite to confer jurisdiction. If jurisdiction now obtains, it is because of the counter.claim asserted by the defendant. It is insisted for the motion that, with respect to the counter-claim, the defendant stands in the light of a plaintiff, and cannot, therefore, be permitted to remove the cause to a federal court; and Lumber Co. v. Holtzclaw, 39 Fed. Rep. 578, is cited in support. There a non-resident plaintiff brought suit in a state court for an amount less than the jurisdictional amount, and as to the counter-claim treated as a defendant and permitted to remove the cause. Undoubtedly, in a general sense, he who prefers a claim is a plaintiff,-a complainant. Unquestionably, also, a counter-claim is a cause of action existing in favor of a defendant against a plaintiff. The right of counter-claim is borrowed from the civil law, and is there known as "demand in reconvention." As to it, the defendant is the actor, the plaintiff virtually a defendant. The plaintiff in the· suit may discontinue his action at will, but the counter-claim still remains. He cannot discontinue as to that. Lanu88e's Syndics v. Pimpienella, 4 Mart. (N. S.) 439; Adams v. Lewis, 7 Mart. (N. S.) 405; McDonough v. Gbpeland, 9 La. 309;. QJxe v. Downs, 9 Rob. (La.) 133; DonneU v. Parrott, 10 La. Ann. 703; De8trehan v. Fazende, 13 La. Ann. 307; Bemchy v. McLeod,32 Wis. 205. Nor can the court properly permit such