Laws: Cases and Codes : U.S. Code : Title 28 : Section 1359
|
U.S. Code as of:
01/19/04
Section 1359 - Notes
SOURCE
(June 25, 1948, ch. 646, 62 Stat. 935.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed. Secs. 41(1) and 80 (Mar. 3,
1911, ch. 231, Secs. 24(1), 37, 36 Stat. 1091, 1098; May 14, 1934,
ch. 283, Sec. 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, Sec. 1, 50
Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143).
Other provisions of section 41(1) of title 28, U.S.C., 1940 ed.,
are incorporated in sections 1331, 1332, 1341, 1342, 1345, and 1354
of this title.
Provisions of section 80 of title 28, U.S.C., 1940 ed., for
payment of costs upon dismissal of an action for lack of
jurisdiction are incorporated in section 1919 of this title. Other
provisions of said section 80 appear in section 1447 of this title.
Provisions of section 80 of title 28, U.S.C., 1940 ed., for
dismissal of an action not really and substantially involving a
dispute or controversy within the jurisdiction of a district court,
were omitted as unnecessary. Any court will dismiss a case not
within its jurisdiction when its attention is drawn to the fact, or
even on its own motion.
The assignee clause in section 41(1) of title 28, U.S.C., 1940
ed., "is a jumble of legislative jargon." (For further references
to the consequences of "its obscure phraseology," see, 35 Ill. Law
Rev., January 1941, pp. 569-571.)
The revised section changes this clause by confining its
application to cases wherein the assignment is improperly or
collusively made to invoke jurisdiction. Furthermore, the
difficulty of applying the original clause is overcome and the
original purpose of such clause is better served by substantially
following section 80 of title 28, U.S.C., 1940 ed.
The assignee clause was incorporated in the original Judiciary
Act of 1789. Such section 80 was enacted in 1875. The history of
the assignee clause "shows clearly that its purpose and effect, at
the time of its enactment were to prevent the conferring of
jurisdiction on the Federal courts, on grounds of diversity of
citizenship, by assignment, in cases where it would not otherwise
exist." (Sowell v. Federal Reserve Bank, 1925, 45 S.Ct. 528, 529,
268 U.S. 449, 453, 69 L.Ed. 1041, 1048.) Thus the purpose of the
assignee clause was to prevent the manufacture of Federal
jurisdiction by the device of assignment. It achieves this purpose
only partially. For example, the assignee clause excepts two types
of choses in action from its coverage: (1) Foreign bill of
exchange; and (2) corporate bearer paper. But this does not prevent
the use of assignment of these choses in action to create the
necessary diversity or alienage for jurisdictional purposes. Such
section 80 does, however, prevent that. (See Bullard v. City of
Cisco, 1933, 54 S.Ct. 177, 290 U.S. 179, 78 L.Ed. 254, 93 A.L.R.
141.) Its coverage against collusive jurisdiction is unlimited, and
its approach is direct. The assignee clause, on the other hand,
prevents the bona fide assignee of a chose in action within its
terms from resorting to the Federal courts unless there is
jurisdiction to support the assignee-plaintiff's case and a showing
that there would have been jurisdiction if the assignor had brought
the action in lieu of the assignee-plaintiff. Since the assignee
clause deals with the bona fide assignee, there has been much
litigation to determine the assignments which should or should not
be within the purview of the clause. Thus the courts have thought
it advisable to limit the term "chose in action" and exclude from
its scope (1) an implied in law duty or promise, and (2) a transfer
of a property interest; and to exclude an assignment by operation
of law from the coverage of the clause. Intermediate assignments
and reassignment also give difficulty.
|
Ads by FindLaw