Feibelman v. Packard & Another. IN Erkor to the Cir. Ct. of the U.S. for the Dist. of La., 109 U.S. 421
Case details
Citation
109 U.S. 421
Full caption
FEIBELMAN v. PACKARD and Another. IN ERKOR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
FEIBELMAN v. PACKARD and Another.
IN ERKOR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA.
Submitted November 8th, 1883.—Decided December 3d, 1883.
Bankruptcy—Conflict of Laws—Removal of Causes.
hit against a United States marshal and his sureties on his ° Th^ recover for an alleged illegal seizure of goods.
be action was originally brought by Nathan Feibelman, p. 422since deceased, and revived by his administrator, the plaintiff in error, by petition filed April 24th, 1873, in the Fourth District Court for the Parish of Orleans, in the State of Louisiana. Its object was to recover damages for unlawfully seizing and taking forcible possession of a stock of merchandise alleged by the plaintiff to have been his property and in his possession. The defendant Packard was alleged to be the marshal of the United States for the district of Louisiana, and the seizure and taking of the property is stated to have been under a claim of authority based upon a writ or warrant issued by the judge of the District Court of the United States for the District of Louisiana in certain proceedings in bankruptcy instituted in that court by D. Valentine and Co. as creditors against E. Dreyfuss & Co.; but it is averred that the writ did not justify the acts complained of. The other defendants below were sureties on the official bond of Packard as marshal, and by an amendment to the original petition it is alleged “ that all the acts charged and complained of in said original petition by which the petitioners suffered the damages therein set forth were done by said Packard in his capacity of marshal aforesaid, and are breaches of the conditions of said bond, and give unto your petitioner this right of action on said bond against said marshal and his sureties.”
1
An action against a marshal of the United States for seizing a stock of goods more than $500 in value, under authority of a writ from a district court of the United States in proceedings in bankruptcy, the suit being on his official bond, and the sureties therein being joined as codefendants, is a suit of a civil nature arising under the Constitution and laws of the United States, which may be removed from the State courts to the federal courts.
2
A district court of the United States sitting in bankruptcy has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, a though in possession of another under claim of title. The officer, in a subsequent action against him for obedience to that order, may justify by proof that the title to the property at the time of seizure was in the bank^pt. If the local State laws are in conflict with this right, they will n regar^e<^ as having any application to it. Sharpe n . Doyle, 103 U. S. 686, approved and followed.
On April 7th, 1865, the defendants filed in the State court their petition for the removal of the cause to the Circuit Court of the United States for that district, accompanied by a sufficient bond, conditioned according to law, upon the ground that the suit arose under a law of the United States, but the application was denied; and thereafter, on April 22d, 1875, they filed in the circuit court a petition for a writ of certiorari to remove the same into that court, which was granted. Thereafter the cause proceeded to final judgment in favor of the defen - ants in that court, and the plaintiff brought the cause here by writ of error.
The case was submitted for the plaintiff in error, and argu for the defendants.
Mr. John Ray for the plaintiff in error made the following p. 423point on the laws of Louisiana as governing the case. The decisions of the Supreme Court of Louisiana have been uniform from the organization of that tribunal to its latest decision on that point, that a sale in fraud of creditors cannot be attacked by a seizure by the sheriff, under an execution against the debtor, of the property in the hands of a third possessor, as was attempted in this case. We refer the court to the following decisions on that point: St. Avid n . Wermprender’s Syndics, 4 Martin (La.) 704; Richards n . Nolan, 7 Martin (La.), 534; Peet v. Morgan, 9 Martin (La.), 307 ; Barl)arin n . Sa/acier, 8 Martin (La.), 561; Orocher v. De Passan, 3 La. 27; Brunet v. Duvergis, 3 La. 81,124; Weeks v. Flower, 5 La. 237; Keller v. Blamchard, 19 La. Ann. 53 ; Van Ostern v. Simmons, 15 La. Ann. 302 ; Schneider n . Dreyfus, 21 La. Ann. 271; Austin v. Da Rocha, 23 La. Ann. 44; Anderson v. Carroll, 23 La. Ann. 175; Doherty v. Leake, 24 La. Ann. 224; Choppin v. Blame, 25 La. Ann. 35 ; McAdam v. Soria, 31 La. Ann. 862. This is very direct in point.
Mr. J. R. Beckwith for the defendants in error.
Mr . Justi ce Matt hew s delivered the opinion of the court.
The action of the circuit court in the removal of the cause from the State court is assigned for error, and is first to be considered.
The suit was pending in the State court, but was not at issue when the removal act of March 3d, 1875, took effect, and the right of removal is regulated by its provisions.
The ground of the removal was that the suit, being one of a civil nature at law, in which the matter in dispute, exclusive of costs, exceeded five hundred dollars in value, arose under the Constitution and laws of the United States.
It is clear that the circuit court did not err in directing the removal of the suit from the State court; for, if we look at the nature of the plaintiff’s cause of action and the grounds of the defence, as set forth in his petition, it is apparent that the suit arose under a law of the United States.
The action, as we have seen, was founded on the official bond p. 424of Packard as marshal of the United States for that district, his sureties being joined as codefendants, and the acts complained of as illegal and injurious being charged to be breaches of its condition. The bond was required to be given by sec. 783, Rev. Stats., and sec. 784 expressly gives the right of action, as follows:
“ In the case of a breach of the condition of a marshal’s bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same.”
Secs. 785 and 786 contain provisions regulating the suit, the latter prescribing the limitation of six years after the cause of action has accrued, after which no such suit shall be maintained, with the usual saving in behalf of persons under disabilities.
The counsel for plaintiff in error assumes in argument that the suit was to recover damages for alleged trespasses. It was plainly upon the bond itself, and therefore arose directly under the provisions of an act of Congress. Gwin v. Breedlove, 2 How. 29 ; Gwin v. Barton, 6 How. 7.
In McKee n . Raines, 10 Wall. 22, the removal, which was held to be unlawful, was made under the supposed authority of the act of March 3d, 1863, and that of April 9th, 1866.
After the removal of the cause, it was put at issue by the filing, on the part of the defendants, of an answer and amended answer. In these answers it was alleged that in a proceeding in bankruptcy against Dreyfus & Co., duly commenced in the district court for that district by David Valentine & Co., as creditors, an order was made directing “ that the marshal take provisional possession of all the property of the said defendants, real and personal, belonging to the said firm of E. Dreyfus Co., or the individual members thereof, and particularly the mer chandise pretended to have been transferred to Moses Fei e man, at Delta, Louisiana, and all of the books of account, a p. 425books and papers of or relating to the business of said firm of E. Dreyfus & Co., and hold the same subject to the further orders of this court; ” that a writ was issued in pursuance of that order to the defendant Packard, commanding him to execute said order, which is the writ mentioned in the plaintiff’s petition; that, in obedience to the command of the said writ, the said marshal did take into his possession and custody the goods and property therein described and referred to, and none other; and that the said goods and property so taken and held are the same as those mentioned in the plaintiff’s petition, the same having come into the possession of the plaintiff, in pursuance of a fraudulent conspiracy between the plaintiff and Moses Feibelman, and the members of the firm of E. Dreyfus & Co., the bankrupts, the object of which was to prevent the same from coming into the possession of the assignee in bankruptcy of said bankrupts, and so to cheat and defraud their creditors, the said goods and property being, when so seized, the property of said bankrupts, and hot of the said Moses Feibelman, nor of the plaintiff, neither of whom were entitled to the possession of the same.
The plaintiff moved to strike from the answer the foregoing defence, which motion was overruled. This ruling of the court is assigned for error.
The ground on which this assignment of error is predicated is, that by the law of Louisiana a person in possession of personal property as owner, claiming title, cannot be disturbed in that possession by a seizure under judicial process running against another person; that a transfer in fraud of creditors cannot be attacked by a seizure by the marshal or sheriff, under an execution against the debtor, of the property in the hands of a third possessor; and that, consequently, in this suit, in which it was admitted that the goods had been taken out of the possession of the plaintiff, it was not competent to set up as a defence actual title in the bankrupts.
In support of this proposition, we are referred by counsel to various sections of the Revised Civil Code of Louisiana, and to numerous decisions thereon by the supreme court of that State; and the statement is made that the decision of this court in p. 426Hozey v. Buchanan, 16 Pet. 215, which, it is admitted, is not reconcilable with the conclusion insisted upon, was made without the point having been mentioned or considered as to the law of Louisiana, under which the case arose.
But it is entirely immaterial, in our view of the case, what the law of Louisiana upon the point is, for the reason that that law has no application to it. The question relates, not to any law of that State, but to a law of the United States, and is, whether under the bankrupt act of 1867, the District Court of the United States, sitting in bankruptcy, has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of another under claim of title, and whether, in a subsequent action against the officer for obedience to such an order, he may justify the seizure by proof that the title to the property was, at the time, in the bankrupt.
This was the very point decided by this court in Sharpe v. Doyle, 102 U. S. 686, a reference to which makes it unnecessary to repeat the grounds of the conclusion, that in such a case the defence here allowed, if established, should prevail.
All the other exceptions taken during the trial were directed to the admission of testimony in support of this defence, and are disposed of when the defence itself is adjudged to be valid.
There is, therefore, no error in the record, and
The judgment is affirmed.
SMITH and Another v. McNEAL and Another.
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOE
THE WESTERN DISTRICT OF TENNESSEE.
Argued November 15th, 18th, 1883.—Decide November 26th, 1883.
Estoppel—Limitations—Statutes of Tennessee. A suit was begun, within the seven years prescribed by the Statute of
tion of the Code of Tennessee, in the Circuit Court of the Unite for the Western District of Tennessee, for the recovery of land, which w
dismissed for want of jurisdiction, by reason of the omission in the pleadings of a jurisdictional fact which actually existed. Within one year thereafter the plaintiff in the former suit commenced another suit in the same court against the same parties, to recover the same land, and set up the jurisdictional fact: Held, 1. That, although the second suit was begun more than seven years after the cause of action arose, it was within the saving clause of article 2755 of the Code of Tennessee, providing that: “If the action is commenced within the time limited, but the judgment or decree is rendered in favor of the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest.”
2. The doctrine that a dismissal of a suit for want of jurisdiction is no bar to a second suit for the same cause of action reaffirmed and the authorities cited.
December 31st, 1873, the plaintiffs in error brought suit against defendants in the Circuit Court of the United States for the Western District of Tennessee to recover forty acres of land. The declaration described the land and averred that the plaintiffs were possessed thereof, claiming in fee through a certificate of the United States district tax commissioners, naming them, under an act of Congress, entitled “ An Act for the collection of taxes in insurrectionary districts within the United States and for other purposes,” and the acts amending the same of January 1st, 1865, and that after such possession accrued the defendants, on December 1st, 1865, entered upon the premises and unlawfully withhold and detain the same, etc.
Two of the defendants, McNeal and Caruthers, demurred to the declaration, first, because it did not sufficiently describe the property sought to be recovered; and, second, because it did not show that the plaintiffs were not citizens of the State of ennessee so as to give the court jurisdiction of the cause.
On February 24th, 1877, the court sustained the demurrer, upon the ground that it had “ no jurisdiction of the cause of ac ion in plaintiffs’ declaration alleged and set forth,” and dismissed the suit.
Afterwards, on October 20th, 1877, the plaintiffs in error rought the present suit against the same defendants in the
same court to recover the same tract of land. The declaration in this cause was identical with that in the former action, except that in this case the following averment was added:
“ Defendants do not claim under, but adversely to, and deny the validity of plaintiffs’ claim of title under the aforesaid acts of Congress, and the validity of plaintiffs’ claim of title under the aforesaid acts of Congress is the only question in controversy between the plaintiffs and defendants.”
The defendants pleaded the seven years’ limitation prescribed by the statute of Tennessee, to which the plaintiffs pleaded the following replication:
“ Now come the plaintiffs, by attorneys, and as to defendants’ plea herein pleaded say, that on the 31st of December, 1873, and within seven years from the time the plaintiffs’ cause of action accrued, the plaintiffs brought suit against defendants in this court to recover possession of the same premises whereof plaintiffs here now seek to recover possession ; and the said suit was commenced upon the same cause of action that the plaintiffs’ now writ and action are founded. That the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the 1st of September, 1877, upon which day a judgment (which said judgment remaining of record in this court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this court, and plaintiffs here make profert of the same ; all of which plaintiffs are walling to certify.”
The defendants demurred to this replication on two grounds: first, because it appeared by the judgment referred to and made a part of the replication, that said judgment was upon the merits; and, second, because it appeared from the record o said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want o jurisdiction.
The cause vras heard upon this demurrer, which the cou sustained, and entered judgment dismissing plaintiffs’ suit.
To reverse that judgment this writ of error was brought.
Hr. Samuel Shellabarger for plaintiffs in error.
Hr. P. Phillips for defendants in error.
Mr . Jus tice Woo ds delivered the opinion of the court.
The question presented by the record is the sufficiency of the plaintiffs’ replication to the defendants’ plea of the seven years’ statute of limitation.
The limitation relied on by defendants is that prescribed by article 2765 of the Code of Tennessee, which is as follows :
“No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, etc., but within seven years after the right of action has accrued.”
The plaintiffs in error contend that their present action is saved from the bar of this statute by the provision of article 2755 of the Code, which is as follows:
“ If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or when the judgment or decree is rendered in favor of the plaintiff and is arrested or reversed on appeal, the plaintiff or his representatives or privies may commence a new action within one year after the reversal or arrest.”
The question of law upon which the parties are at issue, is whether the judgment rendered February 24th, 1877, by which the suit begun December 31st, 1873, was dismissed, the dismissal being on the ground that the court had no jurisdiction of the cause of action set out in the declaration, falls within the saving of this section as being rendered on a ground not concluding the plaintiffs’ right of action.
It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiffs’ right of action.
In Walden v. Bodley, 14 Pet. 156, it was said by this court:
“ A decree dismissing a bill generally may be set set up in bar °f a second bill having the same object in view, but when the bill p. 430has been dismissed on the ground that the court had no jurisdiction, which shows that the merits were not heard, the dismissal is not a bar to the second suit.”
So in the case of Hughes v. United States, 4 Wall. 232, this court declared:
“ In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judginent rendered will prove no bar to another suit.” See also Greenleaf’s Evidence, sections 529, 530, and cases there cited.
The cases would seem to settle the question against defendants in error, for they decide that the dismissal of a suit for want of jurisdiction is upon a ground not concluding the right of action. Defendants in error, however, contend that the bringing of a suit in a court having no jurisdiction thereof was gross negligence, and that the current of authority is against extending the terms of the statute to let in one guilty of it.
Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace.
But the suit between these parties, which was begun December 31st, 1873, is far from being such a case. There is nothing in the record to show that it was dismissed for any inherent want of jurisdiction in the court in which it was brought.
We think that on December 31st, 1873, when said first suit was brought, the circuit courts of the United States, under the second section of the act of Congress of March 2d, 1883, entitled an act further to provide for the collection of duties on imports, 4 Stat. 632, had jurisdiction of a suit brought to p. 431recover lands purchased at a sale for taxes made under authority of the act of June 7th, 1862, for the collection of taxes in insurrectionary districts, where the title so derived was disputed by defendants. The defect was in the declaration, which, although it averred that plaintiffs claimed title under the revenue laws of the United States, did not aver that their title in that respect was disputed by defendants. Had such an averment been made, the jurisdiction of the court would have appeared on the face of the declaration. Ex parte Smith, 94 U. S. 455.
The first suit was therefore dismissed, because the declaration did not state the jurisdictional facts upon which the right of the court to entertain the suit was brought. In other words, the case was dismissed for a defect in pleading. In the present suit the defect of the declaration in the first suit is supplied.
We are of opinion, therefore, that the plaintiffs in error are entitled to the benefit of article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article.
In support of the proposition that plaintiffs in error have not been guilty of such negligence as should exclude them from the benefit of article 2755, the case of Cole v. The Mayor and -Aidermen of Nashville, 5 Cold. (Tenn.) 639, is much in point. 8ee also Memphis <& Charleston Railroad Compa/ny n . Pillow, 9 Heiskell (Tenn.), 248; Weathersly v. Weathersly, 31 Miss. 662; Woo&v. Roughton, 1 Gray, 580; Coffin v. Cottle, 16 Pick. 383; Givens Robbins, 11 Ala. 156; SkiUingtonN. Allison, 2 Hawks. (H. C.) 347; Lamsdale v. Cox, 7 J. J. Marsh (Ky.), 391; Phelps v.
9 Vt. 399; Spea/r v. Newell, 13 Vt. 288 ; Matthews v. Philips, 2 Salk. 424; Kinsey v. Maywa/rd, 1 Ld. Raym. 432.
judgment of the circuit court must be reversed, and the caMse rema/nded to the circuit court feyr further proceed-in conformity with this opimion.