opinion: N. & G. TAYLOR CO., Inc., v. ANDERSON et al.
  (Circuit Court of Appeals, Seventh Circuit.
  June 4, 1926.)
  No. 3556.
  1. Limitation of actions <©=»127(13) — Amended declaration in action on nonnegotiable written contract, so as to entitle plaintiff to maintain suit as assignee of contract under state statute, held statement of new cause of action then' barred by limitations (Practice Act III. § IS; Rev. St. U. S. § 954 [U. S. Comp. St. 1591]).
  In action by corporation as purchaser of rights of partnership under nonnegotiable written contract, amendment of declaration, after running of applicable statute of limitations, so as to enable plaintiff to maintain suit under Practice" Act HI. § 18 (Cabin’s Rev. St. HI. 1923, c. 110), as assignee of contract, 7ield the statement of a new cause of action then barred, notwithstanding Rev. St. U. S. § 954 (U. S. Comp. St. § 1591).
  2. Courts <©=^>366 (1) -
  Interpretation of state statute by state Supreme Court should be final and binding on federal court.
  Evan A. Evans, Circuit Judge, dissenting.
  In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.
  Action by N. & G. Taylor Company, Inc., against John A. Anderson and another, co-partners, doing business under the name of Anderson & Gustafson. Judgment for defendants, and plaintiff brings error.
  Affirmed.
  Henry S. Drinker, Jr., of Philadelphia, Pa., for plaintiff in error.
  H. P. Young, of Chicago, Ill., for defendants in error.
  Before ALSCHÜLER, EVANS, and PAGE, Circuit Judges.
  Certiorari granted 47 S. Ct. —, 71 L. Ed. —.
  PAGE, Circuit Judge.
  N. & G. Taylor Company, a copartnership, made with the defendants a nonnegotiable written contract. After defendants had defaulted thereon, the copartnership, on February 1, 1917, sold all of its assets, including its rights under the contract, to appellant, called plaintiff, and plaintiff brought suit thereon in the Northern district of Illinois. After the time had run under the applicable statute of limitations, plaintiff amended its declaration by setting out the written contract and making allegations under oath, so as to enable it to maintain its suit under section 18 of the Hlinois Practice Act (chapter 110, Cahill’s R. S. 111. 1923), as assignee of the contract. [1] The sole question, raised by a plea of the statute of limitations, is: Did the amendment state a new cause of action? It is urged that, because of the broad powers of amendment given by section 954 of the Revised Statutes (Comp. St. § 1591), the practice in the federal courts differs from that in the state courts. The authority under the Hlinois statutes to make amendments is broad enough to permit such amendments to be made either before or after the running of the statute of limitations, because in Illinois the statute is raised by affirmative plea. If not so raised, the amendment is as effective as though the statute had not run. The power to make the amendment is not here in question.
  It is also urged, on the authority of certain language used in N. Y. Cent. R. Co. v, Kinney, 260 U. S. 340, 345, 43 S. Ct. 122, 67 L. Ed. 294, that the plea of the statute of limitations is less effective in the federal courts than in state courts. There the recovery was under Employers’ Liability Act April 22, 1908, 35 Stat. 65, e. 149 (Comp. St. § 8657-8665). The pleadings are not set out, but the court said: “The original complaint set forth facts that would have given a cause of action at common law, under the statutes of New York or the act of Congress.” The amendment alleged: “That at the time of the collision the plaintiff and defendant were engaged in interstate commerce.” The statute did not require that fact to be stated, and if, without that amendment, a good cause of action was stated under the statute, then, as section 1 of that statute (Comp. St. § 8657), gives the remedy only against common carriers engaged in interstate commerce, it necessarily follows that the amendment did not state a new cause of action. The language of the opinion relied on was not, we think, material to the decision of the case.
  Plaintiff most strongly relies upon Missouri, K. & T. Ry. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Gas. 1914B, 134. In that ease the mother, as sole beneficiary, sued the railway company under the Kansas statute to recover for the death of her son. Under that statute she might lawfully sue in her individual capacity. Subsequently she had herself appointed administratrix of her son’s estate and in that capacity joined in the suit. The Supreme Court held that the action was under the federal Employers’ Liability Act, and not barred, even though the first appearance of the administratrix as plaintiff was two years after the cause of aetion arose. The court said: “The change was in form rather than in substance” citing Stewart v. B. & O. R. Co., 168 U. S. 445, 18 S. Ct. 105, 42 L. Ed. 537. Concerning that case, the Supreme Court, in U. S. Fidelity Co. v. Kenyon, 204 U. S. 349, 356, 27 S. Ct. 381, 383 (51 L. Ed. 516), said that the court’s observation on that point was made “in the course of the discussion of the controlling questions in that case.”
  The Stewart Case was bottomed on Browne v. Strode, 5 Cranch, 303, 3 L. Ed. 108, McNutt v. Bland, 2 How. 9, 11 L. Ed. 159, State of Maryland v. Baldwin, 112 U. S. 490, 5 S. Ct. 278, 28 L. Ed. 822, and Gaither v. Farmers & Mechanics Bank, 1 Pet. 37, 42, 7 L. Ed. 43. In those eases, neither the question of the statute of limitations nor the question as to whether there was a new cause of action was either present or considered. The question was as to who, for jurisdictional purposes in the federal court, on the ground of diversity of citizenship, should be considered the party plaintiff in interest in suits on bonds, where the state or some public official is named as obligee; that is, whether it should be the obligee in the bond or the person for whose benefit the bond was given.
  The McNutt Case is typical of the class of cases there in question. By the laws of Mississippi, sheriffs were required to give bonds to the Governor for the faithful performance of their duties. Suit was brought on such a bond in the federal court in Mississippi, in the name of the Governor, for the benefit of citizens of New York, against a citizen of Mississippi, and the court held that, notwithstanding the fact that the Governor and the defendant were residents of the state of Mississippi, the controversy was between citizens of New York, for whose benefit the suit was brought, and the Mississippi defendant, and that there was the required diversity of citizenship. The court said: “Where the real and only controversy is between citizens of different states, or an alien and a citizen, and the plaintiff is by some positive law compelled to use the name of a public officer who has not, or ever had any interest in, or control over it, the courts of the United States will not consider any others as parties to the suit, than the persons between whom the litigation before them exists.”
  In further elucidation of the question, the court said: “Executors and administrators are not in this position, they are the actors in suits brought by them; the persona] property of the decedent is vested in them; the persons to whom they are accountable, for whose benefit they act, can bring no suit to assert their rights against third persons, be the cause of action what it may; nor can they interfere with the conducting of the suit to assert their rights to the property of the decedent, which do not vest in them. The personal representative is therefore the real party in interest before the court (Clarke v. Mathewson, 12 Pet. 171 [9 L. Ed. 1041]), and succeeds to all the rights of those they represent, by operation of law; and no other persons are capable, as representatives of the personalty, of suing or being sued. They are contradistinguished, therefore, from assignees who claim by the act of the parties, and may sue in the federal courts in cases where the decedent could not. Childress v. Emory, 8 Wheat. 668 [5 L. Ed. 705]; Chappedelaine v. Dechenaux, 4 Cranch, 308 [2 L. Ed. 629].”
  See, also, Irvine v. Lowry, 14 Pet. 293, 297, 10 L. Ed. 462.
  Even in those eases, the suits were brought in the name of the obligee for the use of those interested. Unless the Wulf Case is to the contrary, the Supreme Court, on the question of the federal jurisdiction invoked because of diverse citizenship, seems always to have held that executors and administrators are the real parties in interest. See Ingersoll v. Coram, 211 U. S. 361, 29 S. Ct. 92, 53 L. Ed. 208, and cases there cited.
  In the hearing of the Wulf Case in the Supreme Court, Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 S. Ct. 877, 39 L. Ed. 983, was relied on, but, the court distinguished between the Wulf Case and the Wyler Case by pointing out that the Wulf Case was simply one where a person who was entitled to the whole of the recovery had brought a suit under a Kansas statute, and by the amendment made no change except to join herself as administratrix, so as to bring the ease under the federal statute, where she could not sue as an individual, whereas in the Wyler Case plaintiff, who had sued upon the common-law charge that the defendant had negligently employed and retained in its employ a fellow servant of the plaintiff, and that the injuries sued for arose from such negligence, by amendment, abandoned the common-law charge and “rested the cause of action exclusively upon the negligence of Kline, as a fellow servant, for the reason that a right of action was given in such ease by the law of Kansas, where the accident occurred.” Thus the court held that the amendment introduced a substantially new cause of action to which the bar of the statute of limitations applied. We are of opinion that the difference between the Wyler Case and the Wulf Case is one of the material differences between the Wulf Case and the case at bar.
  In the case at bar, independent of the Illinois statute, no suit could be maintained in a court of law other than by the copartnership. There was no suit ever commenced in its name, nor in its name for the use and benefit of another. The Supreme Court of Illinois, in construing section 18 of the Illinois Practice Act, under which plaintiff is attempting to maintain its suit, held: “A declaration in a suit by an assignee of a chose in aetion does not state a cause of action in favor of the plaintiff, unless it contains the allegations required by section 18, showing the assignment of the chose in aetion, the actual ownership thereof by him, and setting forth how and when he acquired title. A declaration which fails to allege a fact without whose existence the plaintiff is not entitled to recover does not state a cause of aetion. Walters v. City of Ottawa, 240 Ill. 259 [88 N. E. 651]; Prouty v. City of Chicago, 250 Ill. 222 [95 N. E. 147].” Gallagher v. Schmidt, 313 Ill. 40, 44, 144 N. E. 319, 321; Allis-Chalmers Mfg. Co. v. Chicago, 297 Ill. 444, 130 N. E. 736.
  Erom this holding, it necessarily follows that, as prior to the amendment there was no attempt to bring the case within the provisions of section 18, there was up to that time no statement whatever of a cause of action. A statement of a cause of action, under that section, was necessarily the statement of a new and different cause of action. The interpretation of the statute by the Supreme Court of the state should be final and binding upon this court. Elmendorf v. Taylor, 10 Wheat. 152, 158, 6 L. Ed. 289; Memphis Street Ry. v. Moore, 243 U. S. 299, 37 S. Ct. 273, 61 L. Ed. 733; Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116, 33 S. Ct. 967, 57 L. Ed. 1410; Chicago v. Obermayer Co. (C. C. A.) 268 F. 237. There was no law by which plaintiff could maintain the suit, except under section 18 of the Illinois Practice Act.
  The judgment is affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.