McBride v. Oriental Bank of New York

S.D. New York

McBride v. Oriental Bank of New York

200 F. 895, 1912 U.S. Dist. LEXIS 1141

CourtDistrict Court, S.D. New York

DecidedNovember 4, 1912

StatusPublished

Cited by1 cases

This text of 200 F. 895 (McBride v. Oriental Bank of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McBride v. Oriental Bank of New York, 200 F. 895, 1912 U.S. Dist. LEXIS 1141 (S.D.N.Y. 1912).

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Opinion

WARD, Circuit Judge.

The plaintiff, receiver of the Western Bank & Trust Company, of Dallas, Tex., recovered a judgment against the defendant, the Oriental Bank of New York, in the district court of Dallas county, Tex., which on appeal to the Court of Civil Appeals was reduced to the sum of $19,244.85, and in that amount affirmed. Upon this judgment the plaintiff has brought an action in. this court, describing himself as “Rawrence C. McBride, as receiver of the Western Bank & Trust Company, Dallas, Tex.,” and setting out in the complaint his appointment as receiver and the judgment in his favor.

The defendant demurs on the ground that, being a receiver appointed by the court of another state, he cannot maintain this action. This is a well-established general principle. Booth v. Clark, 17 How. 322, 15 L. Ed. 164; Great Western Mining Co. v. Harris, 198 U. S. 561, 25 Sup. Ct. 770, 49 L. Ed. 1163; Hilliker v. Hale, 117 Fed. 220, 54 C. C. A. 252. But the plaintiff, conceding this, contends that a foreign receiver, who is vested with title to a claim, may sue thereon in another state, and he refers to Rolfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, as an illustration of this. The statute of Missouri had vested the entire property of a dissolved corporation in the superintendent of insurance, and the Supreme Court held he was to be treated as if he were the corporation.

Assuming that a receiver vested with title may sue in a foreign state, the question is whether the plaintiff, upon recovering judgment, did become vested with the title to. it, and, if so, whether he is in this case suing as receiver or as judgment creditor. Judge Coxe has fixed the law in this circuit upon this point in Wilkinson v. Culver (C. C.) 25 Fed. 639, holding that in such a case the original cause of action was .merged in the judgment, and that the receiver, in suing on the judgment, sued as judgment creditor; the reference to the receivership being merely descriptio personae, to be treated as surplusage. I will follow this decision.

The second ground of demurrer, viz., that the complaint does not state facts sufficient to constitute a cause of action, depends upon the same contention.

Demurrer overruled.

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WARD, Circuit Judge.

The plaintiff, receiver of the Western Bank & Trust Company, of Dallas, Tex., recovered a judgment against the defendant, the Oriental Bank of New York, in the district court of Dallas county, Tex., which on appeal to the Court of Civil Appeals was reduced to the sum of $19,244.85, and in that amount affirmed. Upon this judgment the plaintiff has brought an action in. this court, describing himself as “Rawrence C. McBride, as receiver of the Western Bank & Trust Company, Dallas, Tex.,” and setting out in the complaint his appointment as receiver and the judgment in his favor.

The defendant demurs on the ground that, being a receiver appointed by the court of another state, he cannot maintain this action. This is a well-established general principle. Booth v. Clark, 17 How. 322, 15 L. Ed. 164; Great Western Mining Co. v. Harris, 198 U. S. 561, 25 Sup. Ct. 770, 49 L. Ed. 1163; Hilliker v. Hale, 117 Fed. 220, 54 C. C. A. 252. But the plaintiff, conceding this, contends that a foreign receiver, who is vested with title to a claim, may sue thereon in another state, and he refers to Rolfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, as an illustration of this. The statute of Missouri had vested the entire property of a dissolved corporation in the superintendent of insurance, and the Supreme Court held he was to be treated as if he were the corporation.

Assuming that a receiver vested with title may sue in a foreign state, the question is whether the plaintiff, upon recovering judgment, did become vested with the title to. it, and, if so, whether he is in this case suing as receiver or as judgment creditor. Judge Coxe has fixed the law in this circuit upon this point in Wilkinson v. Culver (C. C.) 25 Fed. 639, holding that in such a case the original cause of action was .merged in the judgment, and that the receiver, in suing on the judgment, sued as judgment creditor; the reference to the receivership being merely descriptio personae, to be treated as surplusage. I will follow this decision.

The second ground of demurrer, viz., that the complaint does not state facts sufficient to constitute a cause of action, depends upon the same contention.

Demurrer overruled.

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200 F. 895, 1912 U.S. Dist. LEXIS 1141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-oriental-bank-of-new-york-nysd-1912.

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