Franklin v. Conrad-Stanford Co.

Citations

• 137 F. 737
• 70 C.C.A. 171
• 1905 U.S. App. LEXIS 4196

Syllabus

<p>1. Jurisdiction oe Federal Courts—Action on Note—Citizenship op Nominal Payee.</p> <p>A note made payable to the cashier of a bank as trustee, the consideration for which was furnished by the bank, which was the real owner, may be sued on by the bank in its own name, or by its receiver, without indorsement or assignment, under the statute of Utah, and the citizenship of the cashier is immaterial to affect the jurisdiction of a federal court in that state of an action thereon.</p> <p>[Ed. Note.—Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullaghanr, 27 C. C. A. 298.]</p> <p>2 Pleading—Amendment.</p> <p>The fact that an amendment of a complaint was allowed by consent, on application by the plaintiff, after he had sold the cause of action and before the substitution of the purchaser, does not invalidate such amendment.</p> <p>3. Judgment—Impeachment—Estoppel by Admission of Service.</p> <p>A written admission of service of summons in an action in a Montana court, conforming to Code Civ. Proc. Mont. § 642, which makes such admission sufficient proof of service, estops the defendant from subsequently denying the jurisdiction of the court to render judgment against him.</p> <p>4. Abatement—Action on Note—Pending Suit to Foreclose Mortgage.</p> <p>A suit to foreclose a mortgage securing a note, in which the property was sold and the proceeds applied on the amount found due on the note, but in which no formal deficiency judgment has been rendered, is not a bar to a second action on the note in another jurisdiction to recover the amount of such deficiency.</p> <p>5. Evidence—Competency.</p> <p>An offer to prove by oral testimony that a contract for a novation was ‘drawn,” by which defendant was to be released from liability on a note, was properly rejected, where the contract was not produced nor its execution proved.</p>