NATIONAL BANK V. FORE.
209 and others.
NATIONAL BANK OF JEFFERSON t1. FORE
(Oircuit Oourt, E. D. Texas. October 21, 1885.) NATIONAL BANKS-AcTION AGAINST RESIDENT DEFENDANTS- REPEAL OF REV.
The tenth subdivision of section 629, Hev. St., has been repealed by the proviso in section 4 of chapter 290, St. 1881-82, being an act to enable national banks to extend their corporate existence, and for other purposes, approved July 12, 1882, and a national bank cannot now institute and maintain a suit against residents of its own state and judicial district.
ST. § 629, S'UBD 10.
On Plea to the Jurisdiction. McKay IX Camp, for plaintiff. Culberson IX Culberson, for defendants.
SABIN, J. This suit was filed January 3, 1885, the plaintiff and all the defendants being residents and citizens of the Eastern district of Texas, with the exception of one of the defendants, who was a resident of the Northern district of Texas; the matter in dispute being over $5,000, including interest, for which judgment is sought, to which the defendants interpose their exception to the jurisdiction, relying upon the fact exhibited in the petition that all the parties to this suit are citizens or residents of this state; the plaintiff itself being a resident of Marion county, Texas, with its place of business at J eff(lrson, where this court is held, and alleged to be a corporation created by and existing under the laws of the United States of America. It is claimed on the part of the defendants that the tenth subdivision of section 629, Rev. St., is repealed and rendered inoperative by the proviso contained in section 4, c. 290, St. 1881-82, being an act to enable national banking associations to extenrl their corporate existence, and for other purposes, approved July 12, 1882. Section 629, with the tenth subdivision only, reads as follows: "The circuit courts shall have original jurisdiction as follows: Tenth. Of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations."
And the proviso contained in section 4, above referred to, is as follows, viz. : ' "Provided, however, that the jurisdiction of suits hereafter brought by or against any association established under any Jaw providing for national banking associations, except suits between them and the United States, or its omcers and agents, shall be the same as. and not other than, the j Ilrisdiction for suits by or against banks not organized under any law of the United States which do or mij:{ht do banking business where such national banking association may be doing business when such suits may be begun; and all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed."
it appertains, so far as its effects are concerned. It was a proviso v.25F,no.5-14
This proviso is greater and broader than the section or act to which
210
l!EDElUL REP.OHTER ·
.hostile to the jurisdiction of the United States courts, as provided for them in the tenth subdivision of se<ltion 629, above referred to, and practically and effectually repealed that clause of that section. It is plain to be seen from the allegations in the petition that had the plaintiff bank not been organized under the laws of the United States it could not have brought suit in this court, and the object of the proviso was to deprive the United States courts of jurisdiction of cases by or against national banks in all cases when state banks or banks organized under state laws could not likewise sue or be sued in the United States courts, and hence the jurisdiction herein must fail. If the plaintiff had been a state bank it could not have maintained this suit in this court, and the national banks are placed upon a similar footing by this proviso. It is claimed in argument by plaintiff that the right of plaintiff to make use of the United States courts is a vested right which cannot be defeated by legislation subsequent to the act giving the courts jurisdiction, or of the act authorizing the creation or organization of banking associations under laws of the United States; but this claim seems hardly tenable, for the act of June 3, 1864, being" An act to provide a national currency," etc., (section 64,) provides "that congress may at any time amend, alter, or repeal this act;" and section 9 of "An $tct fixing the amount of United States notes," etc., approved June 20, 1874, likewise provides that congress shall have the same power over national banking associations thereafter to be organized, to "amend, alter, or repeal, provided by the national bank act." And so far as the power of congress tp repeal, alter, or amend laws conferring jurisdiction upon the United States circuit court is concerned, it would seem that the power to create a jurisdiction would have the power to abolish it. It is evident that the jurisdiction conferred was not a specifio jurisdiction created by the constitution of the United States. If it were Buch a jurisdiction, although oongress might establish such inferior court in conformity with the constitution, it could not deprive the court of its constitutional jurisdiction. It could not depri ve a party of the right of trial by jury; neither could it deprive a citizen of one state of the righ t to Bue a citizen of another state therein; neither could it deprive any suitor of the right to be heard in such courts, when such jurisdiction was established by the constitution of the United States. But it has the undoubted right to deprive a court of a jurisdiction, charge, duty, or power created solely by congressional action. In the case now before the court, national banking associations were and are the oreatures of congressional legislation, and their right to sue and be sued in the oourts of the United States is likewise u. matter purely of and authority; and hence, when congress restricts their right to use the United States courts to the Bame basis of banks created or organized under state authori-
EX PARTE SCHULENBURG.
211
ty, then such national banks cannot institute and maintain suits against residents of their own state and judicial district. All the parties to this suit being residents and citizens of this state, this court is without jurisdiction as to parties, notwithstanding the amount suell for is amply adequate to maintain it. The suit must be dismissed for want of jllrif:$Jiction; and it is so ordered.
Ex parte
SOHULENBURG.
(CirCUit Oourt, E. D. Michigan.
July 13, 1885.)
CONTEMPT-GARNISHMENT OF WITNESS ATTENDING FEDERAL COURT.
Petitioner, while in attendance upon the federal court, as a witness, was served with a writ of garnishment from a state court. Held, that the plaintiff in such writ could not be restrained from proceeding in the state court, nor be punished as for a contempt of the federal court.
This was a petition for the protection of this court against the alleged unlawful service of process from ,the superior court of Detroit. The petition set forth, in substance, that petitioner was a citizen of Missouri, and a resident of St. Louis; that, being a party defendant in a suit in this court, he received word from his a:torney that his case would be tried on June 9th, and in compliance with this notice he left his home and came to Detroit for the express and only purpose of attending upon the trial of said case, and as a material witness in his own behalf; that on the tenth of June the trial began, and continued until the 23d; that on the sa,id tenth of June, while said trial was in progress, and as petitioner was proceeding from the court-room at the noon recess to his boarding-place, he was served with a writ of garnishment from the superior court of Detroit, in a snit :wherein one Cuddy was plaintiff and one Sarah Horn was defendant; that petitioner thereupon applied to the court to set aside said process on the ground tbat he was privileged from sucb service, which application was refused. His prayer was for the "protection of this court in tbat regard, and that the said Cuddy, his agents and attorneys, may be ordered to cause the service of said writ to be set aside, and that they may be restraine'd from proceeding or taking any steps against petitioner based upon such service, and that petitioner may have such other and further relief in the premises as shall seem proper." H. C. Wisner, for petitioner. BROWN, J. This is a renewal of an application made to this court for protection against the service of a writ of garnishment from the superior court of Detroit. The first application was made shortly after the service of the writ, and was denied by Mr. Justice MATTHEWS
212
FEDERAL REPORTER.
and myself upon the ground of comity; in other words, that we ought not to entertain the application until the petitioner had exhausted his remedy in the state court. No opinion was expressed upon the merits of the question involved. Petitioner's motion to set aside the service of the writ having been denied by the state court, he now renews his petition for an order restraining Cuddy from proceeding further, and for an attachment for contempt. The unusual character of this petition has induced me to examine with considerable care the cases which are supposed to authorize this interference with the proceedings of a court of co-ordinate jurisdiction. The earliest case in this country is that of Ex pa.rte I1u1'Ht, 1 Wash. C. C. 186, in which it appeared that Hurst had come from his residence in New York to attend the trial of a case in the circuit court for the district of Pnnsylvania, in which he was a party; that after his arrival he had also been subpamaed as a witness in another case upon the docket of the same court; and that while he was at his lodgings he was arrested under an execution from the supreme court of Pennsylvania. Upon these facts his counsel moved that he be discharged from the custody of the sheriff. Mr. Justice W ASHINGTON found that he was privileged from arrest, and discharged him. I have no criticism to make of this case. Indeed, it was the constant practice of the district courts sitting in bankruptcy to discharge from the custody of state officers bankrupts who had been arrested in violation of section 5107, exempting the bankrupt from arrest in any civil action during the pendency of the proceedings in bankruptcy. In re Kimball, 1 N. B. R. 193; In 1'e Jacoby, Id. 118; In re Glaser, ld. 336; In re Wiggers, 2 Biss. 71; v. Beach, 2 Johns. 294; Bours v. Tuckerman, 7 Johns. 538; Sanford v. Chase, 3 Cow. 38l. Had the petitioner in this case been arrested by process from the state court while in attendance upon this court as a party or witness, the question would have been squarely presented whether another court would have the right thus to deprive this court of his testimony, and to interfere to that extent with the conduct of our business. Two cases in Pennsylvania seem to be in dirllct conflict upon this point. Com. v. Ha,mb1'ight, 4 Sergo & R. 150; U. S. v. Edme, 9 Sergo & R. 147. In Parker v. Hotchkiss, 1 Wall. Jr. 269, Hotchkiss, the defendant, who wa,s a non-resident, was attending the federal court as a party interested in a suit brough't by Parker. Parker, having been nonsuited, issued a summons upon the same day, and served it upon Hotchkiss at his lodgings. The service was set aside as a violation of his privilege; the only question discussed being whether the privilege extended to writs of summons as well as to writs of capias. There was nothing exceptional in this application, since it is a mut. ter of eve.ry-day occurrence for courts to set aside service of their own process in favor of a privileged party. Person v. Grier, 66 N. Y. 124; Matthews v. Tufts, 87 N. Y. 568; Halsey v. Stewart, 4 N. J. Law,
213
29
366; Mountague v. Harrison, 3 C. B. (N. S.) 292; Henegar v. Spangler, 217;' Miles v. McCullough, 1 Bin. 77. In re Healey, 53 Vt. 694, was a case similar to the one under consid-
eration, except that the process was issued by a justice of the peace against a party to a suit in a county court of Vermont. The court held that if the writ had been made returnable to the county court while the former case was pending, it would have been dismissed on motion, and that as the court could not exercise authority directly over the justice's case, it ought to apply the only remedy left, which was to punish the plaintiff in the justice's court for contempt. This is the strongest case to which our attention has been called. At the same time, as both courts acted under the same sovereignty, the case did not present tbe difficulties which we have encountered here. In v. Sheldon, 7 Fed. Rep. 17, 42, the defendant in a suit pending in the circuit court for the district of Vermont was notified that depositions would be taken under an order of a master in chan{lery at Keokuk, in the state of Iowa, Pursuant to this order and notice, the defendant went to Keokuk for the purpose of attending the taking of the depositions, aud was there served with a summons from a state court of Iowa in favor of the same plaintiff. On returning to Vermont he filed a motion for attachment as for contempt, to which the plaintiff appeared, and admitted bringing the suit there. The court did not hold him in contempt, but ordered that the proceedings in his case in Vermont be stayed until evidence of the discontinuance of the Iowa suit was filed. I should not question for a moment the entire propriety of such an order. In Watson v. Superior Court of Detroit, 40 Mich. 729, a defendant in a suit pending in this court was arrested by the marshal of this district and brought to Detroit, where he gave the usual appearance bail,and was discharged. He was thereupon immediately arrested again on civil process issued out of the superior court of Detroit, at the suit of other plainA motion for his discharge in the superior court was denied, and he applied to the supreme court for a mandamus to vacate the order, which was granted. In delivering the opinion Mr. Justice COOLEY remarked that the privilege arose, not under the process of the superior court, but under that of the federal court; and the lat· ter, if either, was the court which on ita own account would be interested in protecting the privilege. "But we cannot agree that an appeal to the federal court for the discharge of the relator on habeas corpus was the sole remedy." dictum is nndoubtedly authority for the ruling that was made in Ex parte Hurst. The difficulty in this case, however, arises from the statutes of the United States, one of which (section 720) inhibits injunctions to stay proceedings in any court of a state except in bankruptcy cases, and the other of which (section 725) limits our jurisdiction in cases of con· tempt to misbehaviors of any person in the presence of the court, or .so near thereto as to obstruct the administration of justice, the mis·
214
FEDEHAL REPORTER.
behavior of officers in their official transactions, and disobeilience to the lawful writs, processes, orders, rules, decree, or commands of these courts. Now, while this, in terms, is not a petition for an injunc. tion"the petitioner does pray for an order restraining Cuddy frolli proceeding or taking any steps against the petitioner based upon the service of the process from the superior court, and for general relief. I take it that the words "writ of injunction" used in section 720 would include every process or order, irrespective of its form, the office of which is to stay proceedings in the state court. Even if petitioner should waive this portion of his relief and proceed only for a contempt, he would be seeking to accomplish indirectly the same purpose. I know of but two exceptions to the general rule contained in section 720,-one being of cases in bankruptcy, and the other of cases arising under the limited liability act. conceding that the service of the writ of garnishment But was a contempt at common law, (and this was the ruling in Cole v. Hawkins, Andrews, 275, and in some other cases,) I doubt seriously whether it is a misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice. Clearly it falls within no other clause of seotion 725. These words seem to me to refer rather to riotous or unseemly conduct in the court-room, or in such immediate proximity thereto as to interrupt the sessions of the oourt or the orderly conduot of business therein, and not to embrace construotive oOlltempts of its authority. But there is still another ground upon which application should be refused. The petitioner has a complete and adequate remedy, not only by application to the supreme oourt of the state for a writ of mandamus to vacate the order of the superior court, but by writ of error to the supreme oourt of the United States. Wa,tson v. Judge Super. Ct., 40 Mich. 729; Mitchell v. Huron Circ. Judge, 53 ¥ich. 541; S. C. 19 N. W. Rep. 176. In this abundance of remedies I should refuse, even if this were a matter of disoretion, to take a step which would be so likely to lead to 1m unseemly oonfliot of authority. The motion is .herefore denied.
BUNNELL v. BUNNELL' and others. (Oircuit OO'Urt. E. D. Michigan. October 12, 1885.)
DIVORCE-SEllVICE BY PUBLICATION-DECREE FOR ALIMONY-SEQUESTRATION OF ESTATE-STATE STATUTI;;,
A state statute permitted its courts, in snits for divorce, to awarn alimony, and to sequestrate the property of the dcfendant within the and appropriate the same to the payment of the nlimony. f/dd, thai this statnt.e did not apply where the defendant was called into eOllrt h\' pllbli"alinn, and that a decree for alimnny ag-ainst a defendant not pCI',ollat!I' <;Cl'Vctl Wll'. pl'licess was void for want of jurisdiction.