Milledollar v. Bell

GRIER, Circuit Justice. The bill avers that Milledollar, the mortgagee, is a citizen of New York. He could, therefore, have brought his suit in this court for the contents of the bond and mortgage, “if no assignment had been made.” And to sustain the jurisdiction of the court in his case, it would have been necessary only to aver that the mortgagors were citizens of New Jersey at the time suit was brought The complainant's ease is therefore within the strict letter of the law — nor can we discover anything in the spirit, equity or policy of the act, or in adjudged cases, which would compel us to give it a construction such as the defendant asks. The statute does not take from the assignee of a chose in action his right to sue in the courts of the United States, unless his immediate assignor could have sustained such action; but only in case the court could have had no jurisdiction as between the original parties to the instrument, if no assignment had been made. The situation or rights of temporary intermediate assignees, holders, or indorsers enter not into the conditions of the case. The only case which has been brought to our knowledge, in which this point is directly decided, is that of Wilson v. Fisher [supra], which fully supports our view of this point. Mollan v. Torrance 9 Wheat. [22 U. S.] 537, in the supreme court of the United States, which has been quoted as upholding a con 292 trary doctrine, will be found on examination to have no application. It affirms tbe doctrine of Young v. Bryan, 6 Wheat. [19 U. S.] 146, that an indorsee who resides in a different state, may sue his immediate indorser residing in the state where suit is brought, although the indorsee may be a citizen of the same state with the maker. The reason is, because the indorsee sues upon his own contract with the indorser, and not on the original contract of the drawer. But in the case last quoted, of Molían y. Torrance, though Torrance was sued as indorser, Molían was not the immediate indorsee, and it did not appear that Lowrie, who was the immediate indorsee and contractor with Torrance, cpuld have sued in the circuit court. The question whether, if the immediate indorsee could have sued, and the then present holder and plaintiff could also have sued by reason of eitizenshp, the rights of intermediate holders could affect the case, was not before the court. The language used in the opinion of .the court, is perfectly correct, when applied to the case before it. No court can pronounce dogmas of universal application; and the application of general expressions, in an opinion, to cases not before the court, is a sure road to an erroneous result. The same remarks will, apply to the cases decided in the Hirst circuit (Brown v. Noyes [Case No. 2,023] ; Heckscher v. Binney [Id. 6,310]), so far as the language of them can be made to apply to the present case at all. They are correct decisions of the case before the court. But the point now under consideration was not raised nor considered. We are of opinion, therefore, that, as this bill shows that the complainant is a citizen of New York and the defendants citizens of New Jersey, at the time the bill was filed, and that the original contractor or mortgagee is a citizen of the same state, and could therefore have sued these defendants at the time this bill was filed, in the circuit court of New Jersey, “if no assignment had been made,” this court has jurisdiction of the case, and the citizenship of the intermediate holders, owners or assignees, is immaterial, and need not be averred. Demurrer overruled with costs.