This writ of error is prosecuted to secure the reversal of a judgment of the supreme court of the state of Nebraska, affirming one entered by a court of Seward county, in that state, upon a verdict of a jury awarding damages against the defendants below, plaintiffs in error here, because of certain acts charged to have been done by them as officers and directors of the Capital National Bank of Lincoln, Nebraska.
We briefly summarize a statement contained in the opinion of the court below concerning a prior action between the same parties. That action, and three others of like character, brought by different plaintiffs, were begun in a county different from that in which the present one was commenced, and recovery was sought, with one exception, from those who were defendants below in this case, of the sum of a loss occasioned by the insolvency and suspension of the Capital National Bank, a corporation organized under the national bank act. The actions referred to were removed into a circuit court of the United States, and in each a motion to remand was overruled, and in one of the cases (brought by Thomas Bailey) the circuit court sustained a demurrer to the petition and dismissed the cause, and the judgment so doing was affirmed by the circuit court of appeals. 11 C. C. A. 304, 27 U.S. App. 339, 63 Fed. 488. The plaintiffs in the other cases thereupon dismissed their actions and commenced new ones, as also did Bailey, in Seward county, of which the case before us is one. The same persons who were impleaded in the prior actions were made defendants, and in two of the actions one Thompson, a director of the bank, who had not been previously sued, was joined as a defendant. The defendants were sought to be made liable for acts done as officers and directors of the Capital National Bank, although it was not expressly alleged that the bank was organized under the national bank act. Reliance in each action was placed upon alleged untrue written and oral statements and representations of the financial condition of the bank, alleged to have been made and published by the defendants, which were fully set out in various forms of expression, but in none of the averments was it specifically asserted that the acts in question were done in consequence of and in compliance with the provisions of the national bank act, although the exhibits attached to the petition disclosed the character of the written reports, which were in part relied upon. The state court overruled an application to remove, and, a transcript of the record having been filed in the circuit court, on motion the action was, by that court, remanded to the state court, upon the ground that the petition was 'clearly based, not upon the provisions of the national banking act, but upon the liability claimed to arise under the principles of the common law.' See Bailey v. Mosher, 74 Fed. 15.
An amended petition was filed, changing somewhat the averments originally made, and supplementing the same by new allegations. After a considerable lapse of time a second amended petition was filed. This latter enumerated many acts of negligence and mismanagement in the conduct of the affairs of the failed bank charged to have caused its insolvency, in addition to the averments which had been made in the original petition. The defendants demurred on the ground of want of jurisdiction, because the result of the pleading as amended was to demonstrate that the whole cause of action relied upon was based upon the violation by the defendants of provisions of the national bank act, and because, under that act, no cause of action in favor of the plaintiff was stated. The day the demurrer was filed the action was removed by the defendants to the circuit court of the United States. That court overruled a motion to remand (see Bailey v. Mosher, 95 Fed. 223), and subsequently the court sustained the demurrer and dismissed the action. Reviewing the action of the circuit court, however, the circuit court of appeals held that in any event the removal had been made too late, 'and that the judgment of the lower court dismissing the plaintiff's case was rendered without lawful jurisdiction over the case.' 46 C. C. A. 471, 107 Fed. 561. As a result the case went back to the state court, and in that court the demurrer to the second amended petition was argued and overruled.