Jarboe v. Templer

Citations

• 38 F. 213
• 1889 U.S. App. LEXIS 2810

Syllabus

<p>1. Mechanics’ Liens— Enforcement — Blurry—Relief to Subsequent Libs’ Creditors.</p> <p>Where proceedings to enforce a mechanic’s lien are properly removed to the federal court, and a receiver is appointed, and the property sold, and the proceeds are in court for distribution, and a lien creditor, who is made a party, sets up his claim by cross-hill, the court may make a decree establishing his lien, and for a deficiency, under equity rule 92, though the fund is exhausted in paying the costs and the prior lien. It is not necessary that such creditor should resort to an action at law.</p> <p>2. Federal Courts — Jurisdiction—Diverse Citizenship — Transfer of Cause of Action. '</p> <p>The jurisdiction of the federal courts, which has once attached by reason of diverse citizenship, is not divested by a subsequent transfer of the cause of action by which the controversy becomes one between citizens of the same state.</p> <p>3. Assignment — Construction—Payment—Evidence.</p> <p>The cashier of a bank was called at midnight to meet a member of a firm indebted to the bank, and was then informed of the failihg condition of the firm, and that it desired to save the bank from loss, and took an assignment of certain property for an expressed consideration of double the amount of the debt. The bank took possession, and retained the property until taken from it in judicial proceedings, and continued improvements thereon, which it paid for with money furnished by the partner making the assignment and the firm book-keeper, and collected from persons with whom the firm had dealings. It was alleged that the transfer was in payment, and not as security, and that the partner making the transfer was given individually the right to redeem, and that the subsequent payments were with his money.' The account on the bank’s books was not closed, and no receipt was given. In a suit against the other partner to recover the debt, held, that the transfer was by way of security only.</p> <p>4. Sa