llATES V. DAYS.
Lv.
BATES
ana
others
v. DAYs. July 11,1883,) 915-Pm·
(OiI'wit Court, lV. D. M1S8ouri. 1. UNITED STATES OJ:ITY.
CouIns-ATTAcmIENT PROCEEDlNGS-HEV.
Under the provision of section 915 of the Revised Statutes of the United States a circuit court administers the law of the state in which such court is held attachments; and when property has been attached in a suit in the United 8tates court by the marshal, and the sheri:!! has levied an attachment issued from a state court on the goods in the hands of the marshal, the pnority of the lieu of the attaclling creditors is to be determinea by the state law. When writs issue from state and feJeraJ courts against the same property, the officer first obtaining posses,ion, on being notified that a state court ollicer has a writ acrainst the same property, should be ofIered all reasonable facilit;cs to make a full return, and tho officer holding the property should show in his return whatever was done by such state otlieer. Federal courts and stale courts are not foreign courts, or in hostility to each other, in administering justice he tween litigants. The citizen of the state in the feder!!l court cannot be deprived of },ny right he has in a fedeml cou;·t, and the citizen of another statc has the same claim to a deutor's property in the state where he resides as a reSident, but no murc. OF .l\LmSIIAI,-ATTACIBIEN'r STATE COUIlTS.
2
S.UrE-PROPEHTY IN
3.
FEDERAL Couwrs AND 8TATE CounTS NOT FonEIGN COURTS, OR IN HOSTILITY.
At Law. Dysart J: Foster, for Rubey. Williams and,Mr. Carlile, for Hemphill and Bailey. RREKEL,
J.
'l'he facts in the case are as follows:
Dates, a citizen of New York, sucd Days, a citizen of }\Iacon City, :Macon connty, in the state of .l\Iissouri, by attachment on a claim amonnting to $3,800, and the United titates marslial, on the twentieth day of illarch, 1882, under a writ, seizeu a stock of goods, books, notes, and accounts, valueu at 812,000, as the property of Days. On the day of the seizure, one Rubey, a citizen of the state of as assignee of the illacon City Savings B1luk, sued ont an at tachment in the state court against Days on a claim of the bank for :33,500, and the sherilI of :.\i:acon county, to whom tlie writ was directed, undertook to levy the attachment on tlie property seized by and in the actnal possession of the United States marshal. In his return the sheriff states that he levied the ?ttachlllent, on the stock of gOOlls of Days, snbject to the attachment of Bates In the United tilates court, and that he notified the marshal of the attachment and levy, and that he summoneu him as garnishee. Some days after the levy by tbe sberiff, Hempbill and Bailey, two non-resiuents of the state of :lIIissouri, sueu ont an attachment each against Da,s in this court, and the United States marshal levied tbe sallJe on the goods' which he had seizer! on the attachment of Bates. The property attached was sold under an order of this court, and about .'3"3,000 realized. The first attachment of Bates, amounting, with CO.3ts, to about 84,000, has Leen paid. There remains in the registry of tl.e court tlic balance of proceells, which is claimed uy Rubey under his attachment, and by Hemphill and Bailey ou their attachments. These auverse chilli'; are the matter iu cOlltrovers)'.
The difficulty grows out of the constrnction of the act of congress regarding attachments, and the application of its proi'isions to the state laws on the same sulijed. The hms of Mi"souri mul;e prvvis-
lC8
FEDERAL REPORTER.
ion for two or more attachments issuing out of the same or cO-Ol·dinate courts in the state, but are silent as to attachments in Uaited States courts. Rubey, assuming that the state ...Jachment laws prevailed in them, heretofore moved this court for an order directing a transfer of the cases from this to the state court, co have them determined under the state law. This application was denied, because non-residents of the state are entitled to have their controversies determined in the federal coeds. RuLey thereupon applied to be made a party to the proceedings in this 00urt, so as to enable him to assert his rights. Leave was granted. Hemphill and Bailey, though later than Hubey in time with th8ir attachments, yet claim tbe proceeds in controversy, because they say nubey has n1 standing in this court. This depends upon tbe construction given to the federal and state attachment laws. And first of the of the federal statute: Section VI5 provides: "In common-law cases in the circuit and district courts tile plaintiff shall be entitled to sim;lar remedies by attachment or other process against the property of defendant which are now provided by the laws of the state in which such court is held for the courts tbereof." All other provisions regarding attachments, found in t!le United States Statutes, pertain to excepLons or limitations, or look to the effective enforcement of state attach-:nent laws. 'fhe !·t.Hlledies in the United States courts, under the provisions cited, are to be similar to those pcuvided for the conrts of the state. What are the remedies provided by the laws of the state of Mil'souri in cases such as the present? Section 447 of the Statutos of Missouri is as follows: " Where the same property is attacherl in several actior:s by different plaintilTs against the same defellllant. the cou:'t ltlay settle and determine all conwhich may arise between any of the piaintilTs in relation to the property, alltl the priority, valillity, gaol faith, and of the dilTerent attaclnnenls, aud dissolve allY attachment, partially or whol'y.ol." postpone it to another, or make such onler in the prelnises right and jt:stice may require."
If the writs issue from diITerent courts of co-ordinate jurisdiction, such controversies shall be determined by that court in which the first writ of attachment was issued. Under the provisions of the laws of the United Statml cited, this court administers the laws of the state of Missouri regarding attachments. That law, as is shown in the provision cited, has amply provided for the case in hand, which requires the determination of the property betl,een Rubey, Hem.phill, and Bailey. That Rubey, with his attachment in the state court, waS prior in time to Hempllill and Bailey, is not disputed. But it is said that Days' property was in the hands of the United States marshal.-in other words, in the hands of the law,-and therefore could not be attached. This is true, if, by attaching in a case like this, is meant the actual seizing of possession of the property and the taking it out of the hands of the officer. In
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BATES V. DAYS·
169
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this case such seizure was unnecessary, for the property, as stated, 'l\as in the hands of the law. Yet something indicating the assertion of thi-s right must be done by Rubey in order to entitle him to a lien or chim on the property and giYe him standing in this court. Ruhey being a citizen of the state of Missouri, could not sue Days in the federal court, because both were citizens of the same state. He was remediless unless the courts of the state afforded him reo dress. The attachment law did this, and upon suing out the writ and causing the same to be levied, and notifying the United States marshal, as he did, it gave him a lien on the surplus and a standing in this court such as enabled him to asaert bis rights, which he did in due time. 'l'hough the marshal's return sllows that he made additional levies in the Hemphill and Bailey cases on the sarna goods he had seized under the attachm8'Ut in favor of Bates, yet it is apprehended that if he had returned the second and third,-the Hemphill and Bailey writs,-with the indorsement that since the seizure under the Bates attachment additional writs of Hemphill and Bniley against the same property had come into his hands, and that he held the property subject to these several attachments, such a return would undoubtedly have been good. The executive officers of courts should understand that when writs issue from state and federal courts against the same property, the ofticel' first obtaining posses. sion, on being notified that a state court officer, as in this has a writ against the same property, all reasonable facilities should be offered such officer to make a full return, and the officer holding the property should show in his return whatever was done by such state Court officer. Federal and state courts are not foreign courts, or in host.ility to ench other, in administering jnstice between litigants. The citizen of the state in the federal conrt is as mnch in his own court as in the courts of the state. The rights he has he cannot be depri.ed of in a federal court. The citizen of another state has the same claim to a debtor's property in the state of Missouri as a resident, but no more. In the case before the conrt, Rubey, being prior in time with his attachment to Hemphill e,nd Bailey, is prior in right. Attachments of state courts fire valid and binding in federal courts, llnd tLeir priorities are to be ascertained under the laws of the state, whp-re no federal law interferes. . It might well be that the levy, as shown by the return of the sherlff, is good under the fifth subdivision of section 418 of the statute of which provides "that when goods and chattels. money or endences of debt, are to be attached, the officers shall take the same and keep them in his custody, if accessible; and if not accessible, he shall declare to the person in possession thereof that 118 attaches the same in his hands, and summon such person as garnishee." No stress, ?owever, is laid on this provision preferring the placing of the decisIon ou the broader view of the law as stated.
170
FEDER.\L REPORTER.
The authorities cited for the non-resident claimants as to the ne· cessityof an actual seizure to make a valid levy, and the want of such, as well as the insufficiency and illegality of garnishing an offi· {Jer, :;.re not in point. The property being once in the possession of the law, the court determines the rights of the parties before it having claims thereto. The judgment is in favor of Rubey 101' the balRnce in the registry of the court.
Upon motion for rehearing in the abo\-e cause, MCCRARY, J., delivered the following opinion: Section 447 of the Revised Statutes of Missouri. makes careful provision for the adjustment of all questions growing out of the levy of seveml writs of attachment issued from the same or from different courts upon the same property. The question here is, does it apply to a case where some of the writs issue from a state court and others from a fedeml court? . I am clearly of the opinion that it does. The United States has no attachment law of its own, but its courts are required to administer the remedies by attachment which are provided by the law of the state in which such courts are held. :nev. St. § 915. We must administer the attachment laws of the state as we fhld them, and so as to afford to suitors in the federal courts the same remedies afforded to suitors in the state courts; neither more nor less. To exclude the section above named from the attachment law of Missouri, which we are to enforce in the federal courts within that state, would be to favor the non-resident creditor, who can sue in this forum, by giying him an unfair adYantage over the resident cr.editor who must sue in the state court, and who must, of course, abide by that statute. It may be true, as contended by connsel for plaintiffs, that 1t:lere are difficnlties in the way of the enforcement of this statute in the federal courts; but they areuot insurmouutable. If they were, the result would probably be to depriye this court of jurisdiction in attachment cases. If this court cannot administer the remedies by attachment according to the statute of the state, and afford to suitors all the remedies provided by those statutes, it may be doubtful, to say the least, whether it ought to entertain a suit by attachment at all. The provisions of the attachment law of J\lissouri providing a mode whereby questions of priority mllY be determined in such a case as this, are an important part of the state law upon the subject of attachment, anel it seems to me t1141t this court should administer the whole statute, anel not a part only.. The other question presented relates to the snfficiency of the levy made by the sheriff HUller the writ of attachment issued f.::om tte
BALTIMORE & O. R. CO. V. ALLEN.
171
state court. Upon this subject I am satisfied to abide by the reasoning of the district judge in his opinion herein upon the former hearing, fortified and supported as it is by the ruling of the supreme court commission and the supreme court of Uissouri, in the precisely ana.logons case of Patterson v. Stephenson, April term, 1883. The motion for rehearing is accordingly overruled The practice is not for the circuit court to hear motions in cases determined by the district jud;;e when sitting in the circuit court, except at the. request of the di::;trict judge, which was made in this case.
BALTDfonE & O. R. Co. .JiTCUit COUTt,
t'. ALLEN,
Auditor, etc., and others· ]fay I!;, 1583.)
W. D. ViT[jinirt.
I!:NJOINING COI,I,ECTION 01;' TAXES-FoUEION ConrouATION-JuursnrCTION OF Crncuu' CouU'r-TEi\DER OF CouPO:t\s OF HONDS OF STATE OF VU\GlNIA-ACTS OF MAUCH 30, 1871; JA:t\UARY 14, 1582, AND JA:t\UAI:Y 2G, IS82.
On the thirtieth of March, 1871, the state of Virginia passed a funding act, authorizing coupons, cut from her consolidated Londs, to be reecivable in payment of all dues to the state. On the i'ourteenth of Jauuary, IS82, she passed au act reciting that many spurious coupons ,vcre in existence, and rcquiring the validity of all coupons offered in payment of puillie ducs to be te,tcd by a specified proceeding in court. This latter act was pronounced by the United States supreme court at its last term in Antoni v. GrunllO!o, 2 Sup. Ct. Hep, 91, to Le constitutional and an ample rcmedy for the cOl.pon-holder. On the twenty-sixth of January, ES2, Virginia passed another act, providing that in all compulsory collections of the collecting ofliccr should rcceive only gold, silver, or national currency for the tnxes, but also providing a method by which the tax-payer might in CO'jpons to the state trcnsurer, after the validity of the eoupons had been tested by a court proceeding defined, and thereupon receive [Jaek from the treasurer the amount of money wlllch had been collected from him, the tax-colleetor. This last act IS identical, in principle and provisions, with the aet of the state of Tennes,ee; which was reviewed by the United States supreme court in Tennessee 'V, ,"nmi, 96 U. S. t.i9, and pronounced constitutional, and to be an ample remedy for the coupon-holder. The Baltimore &; Ohio Hailroad Company, a c(,rporation of :Maryland, operating certain roads in Virginia, disreg-arding the acts of January H, 18,"2, and of January 26, IbS2, tendered the amount of taxes due to the state of Yirginia in coupons of the bonds of the state, issued undcr the act of .:II arch 3D, IS71, "reeei,'able at and after maturity for all taxes amI debts, dues and demands. due the state." which the authorities refu.';l'd to reccive; and asse,sseu 30 per cent,' in audition after 60 days, and seized the 'property of the railroad company, tbreatened to sell the same for the amount of taxes and'penalty, whereupon the comp:1ny applied to the circuit court of the United States for an injunction. Held, that the coupons tendered must Le received in payment of the taxes; that the penalty was improperly assessed; and tbat the railroad company were entitled to an injunction to restrain tIle state authori· ities from selling their property. ' . HUGHES, J., dissents.
In Equity. On motion for a preliminrtry injnncfion. The railroad which reaches from the bonIer of Virginia beyond