752'
FEDERA.L REPORTER1 vol.
59.
BOWDEN et al. v. BURNHAM et at BARNES et al. v. SAME. . <9lrcu,tt Co'lll't of 1. Eighth Circuit. January 29, 1894.)
No:s. 273 and 274.
am VIEW ON E;RRI:JR-TRtAL TO
When the case is tried to the court without a jury, a generalll.nding has tbe same as .the verdict of a jury; and the facts are not reviewable by bill' ofexeeptions, or in any other manner. Federal courts may include in, one attachment and suit debts due and not due, witJiout regard to state practice in respect to sucb joinder. O'Connell v. Reed, 5 C. C. A.586,. 56 Fed. 531, followed. '.
COURT-GENERAL FINDINGS.
2.
FEDER.AL COURTS-STATE PIt.A,CTICE.
8.
SAHE-JUltrSDlCTION-CITIZENSUIP-AMENDMENT.
The rigllt .of ,amendment exists iDdependently of any state statute, and may be exercised at any stage of the cause, even after subrrtfssion, and to the verdict and judgment, and is as applJicable to attachment suits as to aD3' otbers. When a complaint is amended its ,legal effect is the sa.me as though it r\l'lld as amended; and an amendment making the jurisddctional averments establishes the ,existence of .' the jurisdiction from the commencement of the suit, and not simply from the amendment. ; , IN ACTION-CITIZENS:nIP OF .
4,
SAME,..... ASSIGNED TIONAL AM'OUN,T.
. The provisio;o. Qftbe judiciary acts that an assignee of a chose in actiou cannot sue in a,federal ';O,wt, unless his assignor could bave maintained the action therein refers 'onlY'. to the citizenship of the assignor, and not to jurisdictional amount; and assignee of choses in action aggregating $2,000 may maintain the suit, If his assignors were citizens of ,other states, l.llthough they could not hare maintained separate suits, because none of tJ;1eir claims
an
ti.ATTACHMENT-INTERVEN'rJQN-REDELIVE;RY BOND.
.
Under the Kansas statutes, (Code, § 199,) the execution by interveners, of a redelivery bond estops them from denying that the attached property belonged' to' the defendant in attachment, or that it· was subject to the.
In Error to the Circuit Court of the United States for the District of Kansas. At Law. Action by James K. Burnham and others, doing busi;ness under the firm. name ofBurnham, ganna, Munger & Co., against A. S. Bowden.and R. A. Bowden, individually, and as partners under the name of Bowden Bros. An attachment was levied on defe;ndants' property, and thereupon Barnes, Brown & Denton intervened, claiming an in the property as mortgagees. The issues arising on the intervention were tried with the other issues rll the action, before the court, a jury having been waived, and judg. ment was for plahltifl's. and the interveners separately brought error, and the causes were heard together. Af· firmed. "',. . . . C. N. Sterry; for plaintiffs in error. W. H. Rossington, Charles Blood Smith, E. J. pallas, H. C. Soloman, and William T. Bland, ,for defendants in error.
BOWDEN V. BURNHAM.
753
Before CALDWELL, Circuit Judge, and THAYER, District Judge. CALDWELL, Circuit Judge. The defendants in error, Burnham, Hanna, Munger & Co., citizens of the state of Missouri, brought suit by attachment against plaintiffs in error, A. S. Bowden and R. A. Bowden, individually and as partners, citizens of Kansas, on notes and accounts for various sums, amounting in the aggregate to $2,764.56, $11.35 of which was due, and the balance not due. The judge made an order allowing an attachment for the aggregate sum, alld the clerk issued the writ accordingly. As to some of the notes and accounts sued on, the plaintiffs sued as assignees. The original complaint failed to state the citizenship of the assignors, but an amended complaint was filed by leave of the court, which showed that the assignors were citizens of states other than Kansas. The defendants filed an answer containing a general denial,and alleging (1) that the assignment to the plaintiffs of the claims sued upon was merely colorable, and made for the purpose Of giving' the court jurisdiction; (2) that there was an improper joinder of defendants; (3) traversed the affidavit upon which the attachment was procured; (4) averred that the court had no jurisdiction, because the assignors of the claims sued on could not have brought suit thereon in the circuit court, the claims taken separatelybeing less than' $2,000 in amount, and that, deducting the amount of the assigned claims, the amount in controversy was less than $2,000; (5) that there was a misjoinder of causes of action, by uniting a claim for $11.35, which was due, with claims amounting to over $2,700 which were not due. The defendants also filed a motion to the attachment upon the ground that the court had no jurisdiction of the action or the subjectmatter, or over the property attached, and that the allegations in the affidavit upon which the attachment was granted were not true. The plaintiffs filed a replication to the answer, and thereupon, by a stipulation in writing filed with the clerk in conformity to section 649 of the Revised Statutes, a jury was waived, and all the issues in the cause submitted to the court, which found a general verdict for the plaintiffs, and rendered judgment accordingly. The record purports to contain all the evidence, and it is said in the brief filed on behalf of the plaintiffs in error that this court can review the decision of the lower court upon the evidence, and most of the briefs of counsel on both sides are taken up with the discussion of the evidence in the case. But, upon the record vefore us, we cannot look into the evidence. When a case is tried by the court without a jury, a general finding of the court has the same effect as the verdict of a jury, and is conclusive in this cOUJ't as to the facts. Such a finding cannot be reviewed in this court by a bill of exceptions, or in any other manner. It prevents all inquiry in this court into the special facts and conclusions of law upon which the finding rests. Norris v. Jackson, 9 Wall. 125; MilleI' v. Insurance Co., 12 Wall. 285, 297; Insurance Co. v. Folv.59F.no.7-48
754
FEDERAL REPORTER.
vol. 59·
.Eloin, 18 Martinton v. Fairbanks, .112 S. 670, ,5, Sup. Ct. 321; Boardman v. Tof'fey, 117 U. S. 271, 6 Sup. Ct. 734; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481. In Oooperv.Om.ohundro, 19 Wall. 65, the supreme court .said: "Where issues 'of fact are submitted to the circuit court, and the finding Is general,nothlng is open to review,' · · · except the rulings' of the circuit court in the progress ot the trial; and the phrase, 'rulings of the court In the progress of the trial,' .does not include the general finding of the. circuit court, nor the-conclusions ot the cltcuit court embodied in such general finding."
In the case of Martinton v. Fairbanks, supra, the court say: "The the()ry ot tile plaintiff In error seems to be that the general finding In this case, like a general verdict, includes lluestlons of both law and fact, and that by excepting to the general finding he excepts ro such conclusions ()f law as the general finlling implies. But section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a Jurr.. The general verdict of a jury concludes mixed questions of law and fact; so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. · · · The provision of the statute that the J'ipding of the court shall have the same effect as ti,le verdict of a Jury cuts off the right to review in this case."
The objection that one of the debts sued for, to $11.35, was due, and the others not due, and that the judge's order allowing ,the attachment included ,the debt due as well as those not due, was properly overruled. O'Connell v. Reed, 5 C. O. A.586, . 56 Fed. 531. ,,The objection to the jurisdiction of the court is grounded on the fact that the original petition did not disclose that the assignors of the claims which the plaintiffssned on as assignees were citi· zens of states other than Kansas, and the further fact that, rejecting those claims, the amount claimed by the plaintiffs was less than $2,000. But the court very properly granted the plaintiffs leave to amend their complaint, (section 954, Rev. St. U. S.,) and it was amended. Nevertheless, the plaintiff in error asserts that as the complaint, at the time the attachment was issued, did not contain the necessary jurisdictional averments,every step taken in the cause prior to the amendment was void, and that the amendment of the complaint could not impart vitality or validity to ,anything done before the. amendment was "made. This contention is wholly untenable. It is every-day practice to allow amendments of the character of those ml,lde in this case, and when they are made they have relation to the date of the filinJ{ of the complaint or the issuingof the writ or process amended. When a complaint is amended, it stands as though it had originally read as amended. The court in fact had jurisdiction of the cause from the beginning, but the complaint did not COntain the requisite averments to show it. .In other words, the amendment. did not create or confer thl.' jurisdiction; it only brought on the proper averment of alaet showing its existence from the commencement of the suit. The right; of the federal court to allow amendments under section 954 of the Revised Statutes of the United States is well set-
:bOWDEN V. BURNHAM.
755
tled. The right exists quite independently of any state statute, and may be exercised at any stage of the cause, even after sub· mission, and extends to the verdict and judgment, and is as applicable to attachment suits as to any others. Tilton v. Cofield, 93 U. S. 163; O'Connell v. Reed, supra; People's Say. Bank & Trust Co. v. Batchelder Egg·Case Co., 4: U. S. App. 603, 2 C. C. A. 126, and 51 Fed. 130; Erstein v. Rothschild, 22 Fed. 61; Bam· berger v. Terry, 103 U. S. 40; Dow v. Humbert, 91 U. S. 294, 297; Construction Co. v. Seymour, Id. 64:6, 655; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. 771; Tiernan's Ex'rs v. Woodruff, 5 McLean, 135; Parks v. Turner, 12 How. 39, 4:6; Stookton v. Bishop, 4 How. 155, 168; Swatzel v. Arnold, 1 Woolw. 383. In Roach v. Hulings, 16 Pet. 319, the court say, "Both the vel" dict and judgment are within the terms and intent of the statute, and ought to be protected thereby;" and in Shaw v. Railroad Co., 101 U. So 557, 567, the court say, "As the verdict was amendable in the court below, we will regard the amendment as made." It is said the court did not have jurisdiction for the further reason that the several assignors of the claims assigned to the plaintiffs could not have brought suit thereon in the circuit court, because the claim of each was less than $2,000 in amount. The act of congress provides that the circuit court shall not "have cognizance of any suit * * * to recover the contents of any note or other chose in action in favor of any assignee * * * unless said suit might have been prosecuted in such court to reo cover the contents if no assignment had been made." Act Aug. 13, 1888, (25 Stat. 4:33, § 1.) The prior acts of congress regulating the jurisdiction of the circuit court contained substantially the same provision, and it has been the uniform holding in the circuits that the clause of the section we have quoted has relation to the citizenship of the assignor, and not to the amount of the note or other chose in action assigned. The essential requirement of this Clause of the statute is satisfied when the citizenship of the assignor is such that he could have maintained a suit against the debtor in the circuit court. When the plaintiffs had acquired, in good faith, from citizens of states other than the state of which the defendants were citizens, claims amounting in the aggregate to $2,000, they had a right to sue the defendants on all of such claims in one action in the circuit court, although no one of the claims amounted to $2,000. The requisite amount and the citizenship necessary to confer the juris· diction are united in the plaintiffs; and the jurisdiction is not af· fected by the fact that the several assignors of the claims could not have maintained separate suits thereon, hecause the claim of each was less than $2,000 in amount. Stanley v. Board, 15 Fed. 4:83; Hammond v. Cleaveland, 23 Fed. 1; Bernheim v. Birnbaum, 30 Fed. 885; Chase v. Roller·Mills Co., 56 Fed. 625. Barnes, Brown & Denton intervened in the lower court in the principal case, and claimed that they had an interest in the property attached,and were in possession of the same at the time it
766
FEDERALR:Jl:PORTER,VOl.
(Circuit Court of Appeals, Eighth Circuit.
January 29. 1894.)
No. 328. 1. ApPEAL-BRIEFS-SPECIFICATIONS OF ERROR-COURT RULES.
The provisions of the twenty-fourth rule of court. (47 Fed. xl.,) prescribing the contents and manner of statement of briefs for plaIntiff in error. particularly In respect to assignments and specifications of error, and the presentation of the questions to be dIscussed, will be enforced by the court, to the end that the vital issues in the case may be clearly presented. and immaterial and frivolous matters excluded from consideration. POWERS OF OOUNCIL CONTRACTS BY SIMPLE
MUNICIPAL CORPORATIONS RESOLUTION.
A contract for lighting streets by gasoline lamps. requiring no plant but the posts and lamps, which are to'remain the property of the contractors. ,may be made by simple resolution of cOuncil, under the general charter power to make contracts necessary to the exercise of the corporate powers, and further provisions recognizing the power to contract by resolution or order concurred in by a majority of the members elected; and provisions requiring formal ordinances in making contracts for "gas works, electric or other light works.... etc., do not apply.