SAUTER v. FIRST NAT. BANK OF PHILADELPHIA et al., 8 F.2d 121

ALSCHULER, Circuit Judge (after stating tlie facts as above).

It is contended for appellant that the pleading of appellee bank was not a cross-bill or counterclaim under rule 30 of the federal Equity Rules, which is in part, “the answer must state in short and simple form any counterclaim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counterclaim against the plaintiff which might bo the subject of an independent suit in equity against him, a.nd such set-off or counterclaim so set up shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment on the same suit upon both the original and cross-claims.” In Amer.

Mills Co. v. Amer. Surety Co., 200 IT. S. 360, 43 S. Ct. 149, 67 L. Ed. 306, the court said of the rule that it “should be liberally construed to carry out its evident purpose of shortening litigation.” And in Kishi v. Oil Co., 298 F. 218 (5 C. C. A.), it was said, “An answer seeking affirmative relief by the new equity rules, occupies the position of a cross-bill under the old practice.” But it is urged that the affirmative relief demanded by the bank in its answer was in fact only the statement of a defense (o the bill, and was not tho “subject of an independent suit in equity” against appellant.

The bank had the undoubted right to proceed in equity to foreclose its lien, notwithstanding its contractual right to realize on tho security by making a sale of it under tho terms of its collateral note. 21 E. C. L. 695; Guaranty Trust Co. v. Green Cove R. R. Co., 139 U. S. 137, 11 S. Ct. 512, 35 L. Ed. 116. „ Whether under rule 30 this would give appellee hank the right to proceed by eross-biil or counterclaim in appellant’s action to foreclose the lien created by its co-defendant, Armstrong, we need not consider. Armstrong is making no complaint of the decree of foreclosure against him.

But from, the wording of the rule it would seem that the cross-bill or counterclaim must be such as would be the subject of an independent suit in equity against the appellant. It is apparent that appellant was making definite claim of his ownership of the stoek upon which the bank asseited its lien through the loan made to Armstrong upon the security of the stock certificates which Armstrong delivered to it. One need but to examine appellant’s bill to know that Ms assertion of title in himself, to the exclusion of the bank’s lien, was thus definitely and formally put forth.

Such an undertaking is of necessity more or less influential in beclouding the title to the property, and it conferred upon the bank the right to proceed in equity against appellant to have determined and settled the validity of the claim thus made. This would constitute a right of action in equity by appellee bank against appellant, which, in our judgment, would bring it within the purview of rule 30.

In our view, under the facts set up in the pleadings, the undertaking to foreclose the bank’s lien directly involved the question of superiority of title to the shares of stock as between appellant and appellee bank, and, in foreclosing its lien, the bank may properly have, as an incident thereto, the affirmative relief against appellant which it might have had if appellant had been made defendant in a suit in equity by the bank to obtain against Mm similar relief.

Regarding the bank’s pleading as properly a cross-bill or counterclaim under the rule, was appellant entitled upon his motion, opposed by appellee bank, to have his bill dismissed without prejudice? In Illinois there is a statute preventing dismissal of plaintiff’s bill after cross-bill is filed. No such statute is applicable to the federal courts. There are many decisions touching more or less directly upon the subject, wiiieh wo will not undertake to review nor cite. It was recently stated by the United States Supreme Court in Ex parte Skinner & Eddy Corp., 265 U. S. 86, 44 S. Ct. 446, 68 L.

Ed. 912: “It is ordinarily the undisputed right of a plaintiff to dismiss a bill in equity, before final hearing. * * * The right to dismiss, if it exists, is absolute. * * Tho usual ground for denying a complainant in equity the right to dismiss his bill without prejudice at his own costs is that the cause has proceeded so far that the defendant is in a position to demand on the pleadings an opportunity to seek affirmative relief and ho would be prejudiced by being remitted to a separate action.

Having been put to the trouble of getting his counter case properly pleaded and ready, he may insist that the cause proceed to a decree.” The opinion quotes with approval a similar statement from Detroit v. Detroit City Ry. Co. (C. C.) 55 F. 569, which ease has been frequently cited with approval by federal courts. The facts here are in principle quite analogous to those in the Detroit Case.

The bill there charged that tho street railway company was operating without right, and was stated to be in the nature of a bill to remove a cloud from the title of the city to the exclusive use o£ its streets unencumbered by claims of the railway company. The answer of the company concluded with the prayer for affirmative relief against the city, asking that it be enjoined from in any manner interfering with it in its occupancy of the^ streets under certain asserted ordinances of the city. When the case came on for hearing, the city undertook to dismiss its bill without prejudice.

The railway company objected, and insisted on making proof on its claim for affirmative relief. The court held that, under the circumstances there appearing, the railway company should have the right to establish its demand for affirmative relief, and would be prejudiced by the dismissal of the city’s bill, and denied the motion to dismiss.

Appellee bank had, in the words of Ex parte Skinner & Eddy Corp., supra, put itself “in a position to demand on the pleadings an opportunity to seek affirmative relief.” Besides, delay in the determination of the issue of the cbntroverted title as between appellant and the bank was in the nature of things as distinctly harmful and prejudicial to the bank in realizing upon this security as was the case in Detroit v. Detroit City Ry. Co., supra. . Appellant wag given opportunity to present his evidence, but declined to do so.

While it does not appear whether or not he was ready to proceed, the record shows no effort on his part to procure further time in which to prepare. He simply declined to produce evidence, saying he stood upon the record as made. We find no error in the court’s refusal to dismiss the bill as against appellee bank. There is no merit in the contention of error in the court’s denial of appellant’s motion for leave to further amend its bill by making the First National Bank of St. Louis a party.

The alleged facts respecting this bank’s connection with the transaction were set up in the amended bill, but appellant did not then see fit to make the Missouri bank a party, evidently in the fear that this might oust the federal court of jurisdiction. Amendment of pleadings is largely within the discretion of the court.

In view of the length of time this bill was pending, the several settings for hearing, and the first making of the motion for this amendment at the time of the last setting, after motion to dismiss had been denied, and the evident purpose that through the amendment the court’s jurisdiction of the cause should be lost, and there be thus indirectly effected what had been directly refused through denial of the motion to dismiss, there was surely no abuse of discretion in denying the motion to amend. ■ The decree, however, goes further than to grant the relief demanded by the appellee bank.

It found that Armstrong is the owner of the shares of stock (subject to the lien of the bank), and dismissed the bill for want of equity, not only as to the bank, but as to Armstrong and the other appellees named. The decree assumes to adjudicate the ownership of' the stock as between Armstrong and appellant. Armstrong made no demand for affirmative relief, and was in no position to resist appellant’s motion to dismiss the bill as against him. To accord the bank the affirmative relief it demanded, it was not necessary to settle the conflicting claims of appellant and Armstrong.

It was sufficient for the bank that the decree found its lien superior to the claim of appellant. What then were the equities as between Armstrong and appellant did not concern the bank. If Armstrong should comply with the decree by paying the bank the amount of its loan to him, appellee bank’s relief sought by its cross-bill would have been fully obtained, and the security would pass back to Armstrong, in Avhieh event the decree ought not to preclude appellant from asserting his claim to the stock as against Armstrong.

There may be a surplus after the bank’s claim is satisfied out of the stock, or, assuming that the bank’s lien takes the stock, appellant should have the right, independent of the stock itself, to pursue Armstrong for the fraud which appellant claims he perpetrated. In ’ any such event appellant should be left free to pursue his action against Armstrong, untrammeled by the proceedings wherein he sought no affirmative relief.

As between appellant and the appellees who sought no affirmative relief, the bill as to such appellees should have been considered as dismissed, and no findings or orders made adjudicating equities as between them and appellant. The decree is affirmed as to the First National Bank of Philadelphia, and it is reversed as to Armstrong, with direction to dismiss the bill,. without prejudice, as to Armstrong and all the other defendants named in the bill except the First National Bank of Philadelphia.