· CLOUD
V. CITY OF SUMAS.
177
CLOUD'll. CITY OF SUMAS.
COf,rC'U«t Court, D. Wush1lngtrm, N. D. September 7, 1892.) FBDERAL COURTs-JURISDICTlON-ACTION BY ASSIGNEE.
The statutory rule that an assignee of a chose in action cannot sue thereon in the federa,l courts, unless a suit would have been cognizable therein if no assignment had beenmacle, applies to an assignee, by indorsement. of a city warrant.
At Law. Action by J. A. Cloud against the city of Sumas on city warrants, of which plaintiff was assignee. Defendant demurred, on the ground that the United States court has no jurisdictiol1. Sustained. Smith ItitteU, for plaintiff. (Jhambftr8 Lambftrt, for defendant. District Judge. The complaint in case alleges the town of Sumas, a municipal corporation of this 'state, made and issued certain warrants payable to the order of a firm doing business in said tow.n undllr the name of the" First Bank of Sumas;" that the said firm thereaJter "duly sold, indorsed, and transferred said warrants to plaintiff," who is a citizen of the state of New York. There is no allegation as tothecitizensbipof the persons composing said firm; presumably" therefore, they are citizens of the state in which the firm was located'. .. The first section of the statute defining the jurisdiction of UniteCl States circuit courts is in two parts. The first, in a long involved sentence, prescribes what is essential in a case to bring it within the jurisdiction of a circuit court of the United States; and the second part of the section is another long involved sentence, which 8pecifies a variety of different circumstances which may create exceptions, and prevent jurisdiction from attaching. In this case there isa controversy between citizens of different states, and the amount involved exceeds the sum of $2,000; therefore it belongs to one of the classes of cases described in the first part of said 'section, and is within the jurisdiction of this coprt, .unless it also belongs to one of the classes of excepted cases described in the second part of said section. The defendant has filed a demurrer denying the jurisdiction of the court, and claims that the case falls within the exceptions, because it is brought by an assignee upon a chose in action, and an action in this court could not he maintained upon it, if tl;J.ere had been no assignment. The plaintiff insists that the fact of the warrant sued on having been made and issued by a corporation saves the case from falling within the exception. It is my opinion that, as the warrants are not made payable to bearer, and as the plaintiff alleges a transfer of the property in the same to him by written indorsement thereon, and not by mere delivery, only that portion of the clause which is applicable to suits by an assignee, upon a chose in action, not payable to bearer, need be considered. For the purposes qftbiscase, the clause in question should be read thus: upon foreign bills of exchange; to recover' the contents of "aoy promi ssory
"Nofsbah any circuit or district court have
of any suit except
v.52F.no.2-12
· l7B note or other chose in action in favor of any assignee, '" '" '" unless such suit might have been in such cQurtto, recover the said contents, if no assignment ... ... "\jr' had been made." By omittil'1gaHpol"tions'of the statute not applicable/we find the questions concerninj:!; instruments paY8:ble to. bearer, actiqns by subseand made by corporations to .beeliminated'. statu,te ghresa r,ule which is clElar and unambiguous; it fits the case under consideration, and excludes it from the jurisdiction " , '. is and, the action will be without preJ to 8 8ctio,n in any pourt.
oOOH. W. D.M1.1I8our£,8t· Hl7NiOIP.u. OOJlPOaATIONs-l1)BDINANCB....USB
1800.>
or RtILROAJ) TRAcDl ' ,4 ,c",itY. giv!ng, railrol\d a !-'1I;(ht of on tllat itaHow otller road. tb.8ltileofits tr'aclCiI:W.ithin the,city not bind itt{) allow rQad.!\he.'use of1raok8:"lai11 SlDce the ordinlinC8 wentiDto. effect. the l'lj(ht Is binding in respect to. traoks 011 .right of way.
Chicago,St.Paul& Railway ti:) 90mpel City, St. J oseph Bluffs Railr()ad. QOIDPf\P;Y . ,to. use of the defendant's w,itlliptheUl)lits' of the city of St. Joseph. A prelim41ary mandatory :38 Fed. R:ep.68. Thecase.,isnow on final heariJ,lg., ,Decre.e fo,plaintiff 8S to a, of its qlaim. Ferry &!taqwrl.Qm; for pllllntifi'·. , : J.,M. & for defendant.
,:
, This wa.s before us last.spring upon an rpandatory injunction. That: application was r.efnsed ... 38 58. 'l'he ,case is now presented on pleadings and proqf in, the ppinion then filed that the limit of the city the defen!!ant, was that portion ,ofpl,e track 'thrqugh .the to which the right of way had been by .... caref?l, elaborate ,byc?l;tQsel on both. SIdes, the mtlIuabon· then gIven has strengthened into,collyic(jon. ,As 'noticed there. were" two ordipances. , The ,Pto#ded that, upon conditions naroed, other railroad . sho\:!ld We right" to run their locomotives, and 'trains over andupoDthes.ajd, St, Joseph & Council l3luffsRailroad;" 'And the second., daYl;! thereafter, these fou,r words: "Within sucbcjfy)imits." The rtgllt of w.a,y down .'to George was of a subscrip-
for. a',