Supervisors v. Rogers
74 U.S. 175

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U.S. Supreme Court

Supervisors v. Rogers, 74 U.S. 7 Wall. 175 175 (1868)

Supervisors v. Rogers

74 U.S. (7 Wall.) 175

Syllabus

1. The Act of February 28, 1839, § 8, 5 Stat. at Large 322, providing for the transfer, under certain circumstances named in it, of a suit from one circuit court to the most convenient circuit court in the next adjacent state, is not repealed by the Act of March 3, 1863, 12 Stat. at Large 768, providing that under certain circumstances named in it, the circuit judge of one circuit may request the judge of any other circuit to hold the court of the former judge during a specified time.

2. A court of the United States has power to adopt in a particular case a rule of practice under a state statute, and where a circuit court is possessed of a case from another circuit, under the above-mentioned act of 1839, it may adopt the practice of the state in which the circuit court from which the case is transferred sits as fully as could the circuit court which had possession of the Case originally.

1. An act of Congress of the 28th of February, 1839 [Footnote 1] provides that in all suits in any circuit court of the United States in which it shall appear that both the judges, or the one who is solely competent to try the same, shall be in any way interested, or shall have been counsel, or connected with either party so as to render it improper to try the cause, it shall be the duty of such judge, or judges, on the application

Page 74 U. S. 176

of either party, to cause the fact to be entered on the records of the court and make an order, that an authenticated copy thereof, with all the proceedings in the suit, shall be forthwith certified to the most convenient circuit court in the next adjacent state or in the next adjacent circuit, which circuit court shall, upon such record and order being filed with the clerk, take cognizance thereof in the same manner as if such suit had been rightfully and originally commenced therein, and shall proceed to hear and determine the same, and the proper process for the due execution of the judgment or decree rendered therein, shall run into and be executed in the district where such judgment or decree was rendered, and also into the district from which such suit was removed.

A subsequent act, one of March 3, 1863, [Footnote 2] provides that whenever the judge of the supreme court for any circuit, from disability, absence, the accumulation of business in the circuit court in any district within his circuit, or from his having been counsel, or being interested in any cause pending or from any other cause shall deem it advisable that the circuit court should be holden by the judge of any other circuit, he may request, in writing, the judge of any other circuit to hold the court in such district during a time named in such request.

With these two acts on the statute book, one Rogers had brought suit, in the circuit court for Iowa, against the supervisors of Lee County, to recover the interest due by the county on certain bonds which it had issued, and for the payment of which interest, a tax was by the statutes of the state to be levied.

Having obtained a judgment against the county and issued execution without getting any satisfaction, he applied to the same court for an alternative writ of mandamus upon the board of county supervisors (whose duty it was, by the laws of Iowa, to levy all taxes levied) to levy a tax sufficient to pay his judgment, or to show cause for not doing so. The writ having issued, the supervisors made a return showing cause, or what they set up as such. The case subsequently

Page 74 U. S. 177

coming on for further proceeding, and both the judges of the circuit court for Iowa being interested in the matter as taxpayers of the county of Lee, the case was ordered to be transferred to the circuit court for the Northern District of Illinois.

Being now in that court, a motion was made to remand it on the ground that the act first above quoted, the act, namely, of 1839, had been repealed by the subsequent one of 1863, and that, under this last act, if the two judges of the Circuit Court for Iowa were interested in the case, a circuit judge of some other district should have been requested to hold a court in the Iowa circuit, the case being left there. Instead of this, the case had been transferred and the judge had been left in his district. The motion was, however, denied.

2. The case being thus in the Circuit Court for Northern Illinois and a peremptory writ having issued thence, and the supervisors having refused to obey it, the relator's counsel moved that a writ should be issued "according to section 3770 of the code of Iowa," directed to the marshal of the United States for the district of Iowa, and commanding him to levy and collect the taxes named in the peremptory writ.

This section, 3770 of the Code of Iowa, upon which the motion for the appointment of the marshal was based, is found in a chapter of the Iowa Code regulating proceedings in mandamus. It thus enacts:

"The court may, upon application of the plaintiff (besides or instead of proceeding against the defendant by attachment) direct that the act required to be done may be done by the plaintiff, or some other person appointed by the court, at the expense of the defendant, and, upon the act's being done, the amount of such expense may be ascertained by the court, or by a referee appointed by the court, as the court or judge may order, and the court may render judgment for the amount of such expense and costs, and enforce payment thereof by execution."

The court below accordingly issued the writ to the marshal

"commanding him to levy and collect the taxes named in the said peremptory writ, and when collected to pay said

Page 74 U. S. 178

judgment, interest, and costs therein named,"

and in performing the said duty, requiring him to conform to the laws of the State of Iowa for the collection of state and county taxes as near as might be.

The case being here on error, it was alleged that the court below erred,

1. In overruling the motion to remand the cause to the Circuit Court of the United States for the District of Iowa and

2. In making an order for the appointment of the marshal of the United States, as a commissioner, to levy and collect the tax upon the property of Lee County.

Page 74 U. S. 179

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