636 MEYERS STORE CO. V: COLORADO MILLING [187
ELEVATOR CO. MEYERS STORE CO. V. COLORADO MILLING & ELEVATOR CO. 4-3041
Opithon delivered June 19, 1933 1. REMOVAL OF CAUSES—MIXT OF REMAND.—Where a cau ge was removed from a State court to a Federal court and remanded by the latter court, the order remanding the cause is final and will not be reviewed in the former court. 2. REMOVAL OF CAUSES—EFFECT OF REMAND.—Where a cause hai been remanded from a Federal court, the State court must proceed as though no removal had been made. 3. EQUITY—NECESSARY PARTY.—The chancery •court properly dismissed a cause against one not . a necessary party who , was brought in as a defendant at the request of the original defendant. 4. EQUITY—PARTIES.—A defendant cannot bring in another party as defendant unless he files a cross-complaint against such party and states facts showing a cause of action affecting the subject- - matter of the original action. 5. PARTIES—JOINT TORT.—A plaintiff may sue one or all- of joint tort-feasors. e. PARTIES—INTEREST IN CAUSE OF ACTION.—One who has no interest in the cause of action sue d on and against whom no relief is sought cannot be made a defendant. 7. BILLS AND NOTES—PARTIES.—Where plaintiff sent a draft to a bank for collection, and the drawee gave the bank a check, but
ARK.] MEYERS • STORE CO. V. COLORADO MILLING & 637 • ErAvATOR Co., the bank closed before the proceeds were remitted, and plaintiff sued the drawee, the latter . could not make the bank's receiver party since any defense available to . the draWee could be availed of without making the receiver a party. Appeal . from Lawrence Chancery - Court,- Eastern District ; A. S. Irby, Chancellor ; affirmed. • W. P. Smith- and . G. M. Gibson,- for appellant. H. L. Ponder, for appellee.. MEHAFEY, J. On June 23, 1930, the appellee, Col- • orado .Milling & Elevator Company,- sold to the appellant, Meyers Store . Company, 2,000 barrels of flour. The flour purchased was •shipped to • the appellant in three shipments, • on October 13th, October . 1.6th and October 21st. They were shipped to shippees order with bill of lading and. directions to notify Meyers -Store Company at Walnut Ridge, Arkansas, a draft for the amount of. each shipment being attached and -payable. to Planters' National Bank of Walnut Ridge, Arkansas, and being . drawn through that bank.. • The purchaser was, permitted to take the bill of lad- . ing and get possesSion• of 'the flour without paying the drafts: • .On May 8, 1931, the Colorado • Milling - & Elevator Company:filed its complaint in the chancery •court for. the Eastern District of Lawrence County against Meyers. Store Company for $2,121.66, the amount due on the flour together with protest fees •and interest. It was alleged in the corOlairit that the bank officials-and the Meyers Store Company -conspired ! to defraud the . Colorado Milling & Elevator Company 1 7 6, surrendering the bills of lading without the drafts being paid ; that- .on November! 7; 1930;-..the- appellant knew or had' reasonable . cause to believe-that the bank was insolvent,- and :drew its check on said bank for the sum of. $2,121.71, payable to .the. Planters . '. • National • Bank, pur- . porting to be given for the-amOuntof the draft§ covered by the shipments ; that. the check was stamped "Paid" November 5th, but was not actually made or starnpecl until November 7th. The appellant. knowing the iusol-vency of tbe bank,. knew it would:not be _paid, and fraud-
638 MEYERS `SiORE' CO: 'COLOialti0 MiLLIN6 -86 [187
ELEVATOR Co. ulently dated the -check Novetaber . 1,1930 ; that the appellant was at . tbat..time engaged . in- transferring the greater portion ok its . deposits to a bank in St. Louis, believing that the Planters' National Bank was about to fail; That -the Planters' National . 'Bank drew its draft on the Franklin-American TrU-st CoMpanY of St. LoniS in the sum 'of $2,118.41. This draft was-Mailed direct to the appellant and received bythe • Sf. LOnis bank on'Novem-ber 8th, the-Planters . ' NatiOnal Bank , having-. close'd its doors, On November 7th. The' draft was not paid, and the protest Tees were $3.25: The appellant 'had designated,. thePlanters ' National Bank as the -collecting bank: . The' prayer of the complaint- Was 'for judgment against the Meyers Store Company 'for- $2,121.66; : with interest. The appellant' filed- dethUrrer, which was overruled, and then•file.d answer in which it-denied the allegations-nf the-complaint, except as• to Puichasing the flour; and the amount of the indebtedneSs.- As a . defense, appellant alleged that the 'Planters' National 'Bank should be made a' party, 'and be reqUired to pay said meney to the appellant' or- appellee, as a pre--: ferred claim. Thereafter it filed an amendment to its' coMplaint, 'alleging the • giVing of its : Check in- Payinent of ' t . he am'ount : due it7asked that' :Ann-- strong, -receiVer 'of the Planters' Nati6na1 Bank,. ibe made • a party: The' receiver -waS made a party and. -filed petition and bond for remoVal to the 'Federal court;- and • the caile wa g removed To the Federal court. - • -•1 'In the 'Federal court' the Te'ceiver--filed ihiS answer, in 'which- the allegations in- the' complaint against 'him were-denied. The'Colorado . Milling & ElevatOr 'Company filed' Motion in the Federal court to- reniand- the ea:Use; and the Meyers Store Company alsd filed motilin to re-mand- the cause to the • LaWrence Chancery Contt. The I Colorado 'Milling' & tleVatot Compahy did not Sne;:the receiver of the Planters' National Bank, and did not ask \ that ' he*be made' a party, and no judgment was asked ■ , against him. 'The appellant asked , that he be made a party, but did not -ask any judgment against him. -It alleged that
' ARR.] MEYERS 'STORR CO. V. -COLORADO MILLINCi 4 . 86 639
. ELEVATOR .CO. • the• money was a trust fund, arid • that the receiver be required to- hold it- as. a:trust fund to be . ,paid either to - the appellant or . appellee, as the court might decide: '• After the case':was . remanded; the receiver •moved .that• the cause be dismissed 'as-to hini, and this. , motion .was • granted, and-the -cause 'as - to. him dismissed. • This .a.pPealis from:the:order disMissing the' cause . as to the receiver,• and . Do other,questious; are presented- for our-determination.:•' . : • , • , ; .• . _Where , a cause is removed from a.Stnte court to the Federal :court; and, remanded ..by, the, latter:, court,....the order of ;the ,Federali court, .rernanding the cause. is final, .and will; not be reviewed, by, the; State court. K. C. .Sou.. Ry. Co, y...Wade,132 ,Ark...551_,- 201. S.: W..787; ,Sr . t . L (e.S. B. Co. V. ,. Neal,. 83 • Ark.. 591, 98 S. W. 958 ;. Mo. Pac. 10,.247: S. 54 ;•; German National;Bank: v. Speckert,. S.,:40.5, 21 Poe. Livestock Co., Y.. Lewis, 241 IL; 5.• 440, ,36 . S. Ct.: 637 ; du: p . Rd. Co. v..',Fitzgerald, '160 U.S. 556, 16 , S. :Ct. 389; k McLaughlin Bros. v. Hallowell, 228: TJ:S: 278; . 13J,S . .: Ct. .465 . ; Lewis on Remoyal of .Canses,,499.-:., ,When,a case, ha -s r been remande,jtis the , duty.: of the State-court, to proceed as though no remOval had. ever een atternpted. onjternoval of , dauses, 503 . .• When' the :cause was-!renianded. and reached.. the Lawrence Chancery : Court, it . :was, the . duty of the- court — to proceed. jUst as if . no petition fOr . . removaLhad , ever been , filed, .and the :chaneery. court ! had ..jurisdiction,•of the person of the receiver„ and met only ;had the, authority, but it , was itsdnty, to dismiss the ea.u.se against:the receiver unless ,the.receiver, was. a necessary . ,party.. .The, plaintiff in the ,case,would have had the.. rightto- sue.,the receiver and ..the Meyers Store: . Company„ ,either of them,..ana if , either, had, been sped .by:-,the.plaintift other could not complain. . , . • . Qur , .statute . prevides that :the defendant. may, f : ile" a nross‘complaint against persons, .other than the . : defend:- .ant when the. defendant:has 'a : cause, of ,aetion.against codefendant . or . a person , not party ;to the,.action :and affecting the subject-matter of the . action, when..he may
640 - -MEY:ERS -STORE -CO.- v.. COLORADO- MILLING .& 1.187 • . ELEVATOR C(i) make his ansWer a cross-complaint against the defendant or other person. Section 1204, CraWford & Moses' Digest. In the sait against the appellant, it either owed the appellee or it did not, and no cause of action that the appellant may have against the receiver in any way affects the subject-matter of the original action in this case. • "Where two or more persons are jointly bouad a contract, the. action thereon may be brought against all or any of them at the plaintiff's option." 'Section 1100, Crawford & Moses' Digest. That is, the plaintiff in a suit may sue one person or all that are bound, but the . plaintiff himself determines whether he will do this, -and the defendant cannot bring in another party defendant unless the defendant files a cross-complaint against such party and states facts showing- that the cause -of •ction againSt such third party affects the subject -of the original Action. Lamew Wilson-Ward Co., 106 Ark. 340; 153 S. W. 261; Fluhart•v. TV. T. Rawleigh Co:, 126 Ark: . 307, 190 S.-W. 118; • • A . plaintiff net only has : the right 'to sne Any One or all of the persons signing a contract, bUt he also has the right to proCeed agaihst Any ohe or all of 'joint - tort-feasors. McCulla v. Brown, 178 Ark. 1011, 13 S. W. (2d) 314; Coats v. Milner, 134 Ark. 311, 203 . S. W. 701. "In the absence . of statute, itis not permissible to *amend at the instance of the defendant, by adding new plaintiffs or defendants; although it is permissible for plaintiff to . add thein after objection by the defendant. Under statutes,Thowever,- a defendant may cause one .against whom he has a right of action -to be made . 'a party." Standard Ency. of Procedure, vol. 20, 956. The. statate above cited' requires the third person -againSt whom the defendant files a cross-complaint to have- an interest affecting the original suit. In the case at bar, it . Was not claimed that the receiver had any interest affecting the Original suit. .if the original defendant had . a defense, it was Complete, and he could• avail himself -Of it withoat making the receiver a party.
• One cannot . be Made a defendant who has no interest in the cause of action sued on, and against whom no relief iS sought. Whatever defense the appellant may have had in this case. was available to it without making any other . person a party. Therefore the receiver was not . a necessary party . .. • • The' decrep of the chancery cou . rt i s affirmed.'
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.