MCMICKEN V. WEBB, 36 U. S. 25 (1837)

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U.S. Supreme Court

McMicken v. Webb, 36 U.S. 11 Pet. 25 25 (1837)

McMicken v. Webb

36 U.S. (11 Pet.) 25


McMicken and Ficklin were in partnership, as merchants in the State of Louisiana, and at the dissolution of the connection, Ficklin agreed to purchase the half of the stock belonging to McMicken, and after the partnership was dissolved gave him, in payment for the same, a promissory note, payable, after its date to the order of McMicken and Ficklin, which was executed by Ficklin, Jedediah Smith, and Amos Webb, by which they promised, jointly and severally, to pay the amount of the note. Although the note was made payable to the order of McMicken and Ficklin, the latter was in no wise interested in it as the payee

thereof. McMicken is a citizen of Ohio, and the drawers of the note were citizens of the State of Louisiana. Amos Webb resided in the Western District of Louisiana, but when the process in this suit was served upon him, he was in

New Orleans, in the Eastern District. The defendant, Webb, denied the jurisdiction of the District Court of the United States for the Eastern District of Louisiana, alleging that he was a citizen of the Western District. The defendants pleaded in abatement and to the jurisdiction that the suit should have been brought in the name of both the payees, and at the time it was given, Ficklin was a citizen of Louisiana; this suit could not, therefore, be brought in the district court of the United States.

The residence of a party in another district of a state than that in which the suit is brought in a court of the United States does not exempt him from the jurisdiction of the court. The division of a state into two or more districts, cannot affect the jurisdiction of the court on account of citizenship. If a party is found in the district in which he is sued, the case is out of the prohibition of the Judiciary Act, which declares that

"No civil suit shall be brought in the courts of the United States against a defendant by any original process in any other district than that whereof he is an inhabitant or in which he shall be found at the time of serving the writ."

The objection to the jurisdiction of the court on the ground that the note was given to Ficklin and McMicken, and as Ficklin was a citizen of Louisiana, the suit is interdicted by the prohibition of the Judiciary Act, which declares that the courts of the United States shall not have cognizance of a suit in favor of an assignee of a chose in action unless a suit could have been prosecuted in said court for the same if no assignment had been made, except in cases of foreign bills of exchange, cannot be sustained. Ficklin never had any interest as payee in the note. Although the note had been given in the names of both persons, it was for the sole and individual benefit of McMicken, and there was no interest which Ficklin could assign.

The plaintiff in error filed his petition in the court below averring that he was a citizen of and resident of the State of Ohio, claiming chanrobles.com-red

Page 36 U. S. 26

that the defendant, Amos Webb, who was also averred to be a citizen and resident of the State of Louisiana, with Mary Ann Smith, in her own capacity, and also as tutrix to Catharine Smith and Sarah Smith, minor children and heirs of Jedediah Smith, who was deceased and whom the said Mary Ann, as his widow, survived, having since his death intermarried with Ira Smith, who was therefore the tutor of said children, all of whom also were citizens of and resident in the State of Louisiana, were jointly and severally indebted to the plaintiff in the sum of $4,866.93 1/2, besides interest and costs. The plaintiff averred that said indebtedness depended upon the following facts:

In 1815, the petitioner, the plaintiff, and one James H. Ficklin, formed a co-partnership, and did business in the Parish of Feliciana, in the State of Louisiana, under the name of McMicken & Ficklin; that on or about 8 September, 1817, the partnership was dissolved by mutual consent and the stock of merchandise then on hand the said Ficklin agreed to take to his own account and to pay for one-half of the same to the petitioner at the original cost with the addition of five percentum, to conclude which agreement, the said Ficklin thereupon executed the note of which the following is a copy:

"$4,866.93 1/2 St. Francisville, Sept. 20, 1817"

"On 1 March 1819, we or either of us promise to pay, jointly or separately, unto McMicken & Ficklin or order four thousand eight hundred and sixty six dollars, ninety-three and one-half cents, being for value received, with ten percent interest, after due until paid."




The petitioner then averred that the note was made payable to McMicken & Ficklin; that it was in fact and intended so to be for his (petitioner's) portion of said partnership property, the same having been made, after said firm had been dissolved, the joint name being used merely for the petitioner's sole benefit, the said Ficklin being in no wise a party thereto, except as one of the obligors. The petitioner further averred that said Mary Ann Smith and her two said minor children (Catharine and Sarah) owned and possessed chanrobles.com-red

Page 36 U. S. 27

all the property and estate of said Jedediah Smith; the said Catharine, in right of her community, and the said children as heirs, and by reason of which they had become obligated, in solido to pay to the petitioner the amount of the note aforesaid. A citation was prayed for in the usual form.

Service was legally made, and on 11 February 1835, Webb, one of the defendants, appeared by his attorney and filed three pleas to the jurisdiction of the court. The other defendants, Mary Ann Smith and her children (Catharine and Sarah), appeared on the same day by attorney and filed two pleas to the jurisdiction. The pleas by all the defendants, with the exception of the first, were the same, and they presented the same questions for consideration.

The first plea by Webb was

"That while he admits he is a citizen of the State of Louisiana and that he was in New Orleans when the citation was served, he avers that he resides in the Parish of St. Landry, in the Western District of said Louisiana, wherefore he prays judgment and whether the court will take further cognizance of the cause, as regards him, or that the suit may be transferred to said Western District of Louisiana, at the cost of the petitioner."

The second plea, which was common to all the defendants, averred that as the note stated in the petition was made payable to McMicken & Ficklin -- that as the petitioner could only bring suit thereon by virtue of some assignment thereof, and protesting that there was no such assignment, it did not appear by averment in the petition that said McMicken & Ficklin, comprising the payees of said note, could have prosecuted their suit against the makers thereof in this Court. To these statements was added the general prayer that the court will not take jurisdiction. The third plea averred that it did not appear by the petition that the payees, at the time said note was made, could have prosecuted, or that the makers could have been prosecuted, it in the district court. Several other pleas appeared in the record, but they presented matters in bar, and as they were not considered by the court below, they are not stated.

In December, 1835, the cause came on for hearing, and the judgment of the court is thus recorded:

"The court, having maturely considered the plea to the jurisdiction made in this case, now orders that the same be sustained and that the plaintiff's petition be dismissed at his costs. "

Page 36 U. S. 28

The plaintiff prosecuted a writ of error to this Court. chanrobles.com-red

Page 36 U. S. 36


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