A court of the United States, sitting as a court of law, has an
equitable power over its own process to prevent abuse, oppression,
and injustice, which power may be invoked by a stranger to the
litigation as incident to the jurisdiction already vested, and
without regard to his own citizenship.
Page 124 U. S. 132
A marshal holding property under color of a writ of attachment,
even if found to be invalid, issued from a court of the United
States in an action at law can be made to hold also under a writ
from a state court subsequently served by the garnishment process,
and if the creditor in the process from the state intervenes in the
cause in the federal Court and invokes its equitable powers, it is
the duty of the federal Court to take jurisdiction and to give such
relief as justice may require, and such priority of lien as the
laws of the state respecting attachments permit, without regard to
citizenship.
The exercise of the jurisdiction conferred upon circuit courts
of the United States by Rev.Stat. § 915 to administer the
attachment laws of the state in which the court is held,
necessarily draws to itself everything properly incidental, even
though it may bring into the court, for the adjudication of their
rights, parties not otherwise subject to its jurisdiction, and is
ample to sanction the practice of permitting the constructive levy,
by attaching creditors under state process, upon property in
possession of a United States marshal by virtue of an attachment
made under a process from a circuit court of the United States for
the same district, and their intervention in proceedings in the
latter court where, as between state courts of concurrent
jurisdiction, a similar method of acquiring and adjusting
conflicting rights is prescribed.
A and B were citizens of the same state. A sued out a writ of
attachment against B from a court of the state on a Saturday. On
the following Monday, the sheriff attempted to levy the attachment,
and found the property of the debtor in the custody of the United
States marshal for the district, who had seized it by virtue of
writs of attachment issued and levied on the intervening Sunday
from the Circuit Court of the United States, in favor of other
creditors. Being enable to obtain possession of the property from
the marshal, he placed keepers about the building (who remained
there until the sale) and served notice of seizure upon the
marshal, and also process of garnishment. Subsequently, on the same
Monday, the same and other creditors levied on the same property
under other writs of attachment issued from the Circuit Court of
the United states on that day, and the property, which remained all
the time in the custody of the marshal, was finally sold by him
under the Monday writs, the Sunday writs having been abandoned.
Held that it was the duty of the court, having in its
custody the fund arising from the sale of the property, all the
parties interested in the fund being before it, to do complete
justice between them, and to give to A priority, as if he had been
permitted to make an actual levy under his writ.
The statement of the case, prepared by the Court, and prefixed
to its opinion, was as follows:
This case was before this Court on a motion to dismiss the
Page 124 U. S. 133
writ of error, the result of which is reported in
113 U.
S. 545. It is now here for final disposition upon its
merits.
It appears by the record that a number of creditors of Joseph
Dreyfus brought several actions at law against him as a citizen of
Louisiana in the Circuit Court of the United States for that
district, the plaintiffs being citizens of other states, in which
writs of attachment were issued and levied upon the stock of goods
belonging to him contained in a store and warehouse, No. 33
Tchoupitoulas Street, in the City of New Orleans. In these actions,
judgments were rendered in favor of the several plaintiffs, and
proceedings were had in them whereby the attached property in the
hands of the marshal was sold, and the proceeds brought into the
court for distribution. Pending these proceedings, and before an
actual sale under the order of the court, Cornelius Gumbel, a
citizen of Louisiana, the present plaintiff in error, filed a
petition, called, according to the practice in that state, a
"petition of intervention and third opposition." In that petition
he shows that on October 27, 1883, he instituted a suit in the
civil District Court for the Parish of Orleans against Joseph
Dreyfus, and obtained therein a writ of attachment, which he
alleges was executed by a seizure of the defendant's property,
being the same as that levied on by the marshal in the actions in
the circuit court; that subsequently judgment was rendered in his
favor for the amount of his claim and interest, on which a writ of
fi. fa. was issued to the sheriff of said civil district
court directing the seizure and sale of the same property to
satisfy his judgment; that the sheriff was obstructed in the
execution of said writs, and the petitioner prevented from
realizing the fruits thereof by the fact that the property subject
to his attachment is in the actual custody of the marshal of the
United States. The petition particularly sets out the facts
constituting a conflict of jurisdiction to be that, on the morning
of the twenty-ninth of October, 1883, when it was claimed that the
sheriff had made his levy under the petitioner's writ of
attachment, he found at the store, claiming to exercise rights of
possession and control, deputy marshals of the circuit court in
charge as keepers, and in execution of writs of attachment issued
from that court; that
Page 124 U. S. 134
at the time of the seizure made by the sheriff no valid or legal
writ had issued from the circuit court; that the writ or writs
under which the marshal or his deputies were holding and claiming
to hold the property had been issued on Sunday, October 28, 1883,
and were absolutely null and void, both by common law and the
statute law of Louisiana; that said writs, so issued on Sunday, on
account of their illegality, were discontinued and abandoned by the
plaintiffs in the several suits in which they had been issued; that
other writs, subsequently issued in the same actions, were issued
to the marshal, and under them he detained the property, which,
however, in the meantime had become subject to the seizure under
the petitioner's writ in the hands of the sheriff. The petition
prays that the property in the custody of the marshal then
advertised for sale should be restored to, and placed in the hands
of, the civil sheriff, to be sold under the petitioner's writs of
execution, in order that the proceeds might be distributed by the
civil district court, or, if sold by the marshal, that the proceeds
of the sale be ordered to be paid over to the civil sheriff, to be
distributed by the civil district court, and also "for such other
and further aid, remedy, and relief as the nature of the case may
require and law and equity permit." This petition of intervention
was filed by leave of the court, and with it a transcript of the
proceedings in the civil district court in the case of
Gumbel
v. Dreyfus. The motion of the intervenor for a stay of the
marshal's sale of the goods levied on was denied, and thereupon, on
January 21, 1884, by leave of the circuit court, an amended and
supplemental petition of intervention was filed by him, and also,
on the eighth of March, 1884, a second supplemental petition. In
these, the petitioner claims that if it be held in fact and in law
that the marshal of the circuit court had effected a seizure of the
property attached, which vested the jurisdiction of the circuit
court as to its disposition and the distribution of its proceeds,
and rendered impossible any actual seizure or physical control over
the property by the civil sheriff, the intervenor is entitled to
have his attachment recognized by the circuit court, and to share
in the distribution of the proceeds of the property according
Page 124 U. S. 135
to priority of time of seizure under the laws of the state, and
alleges that, in addition to the efforts made and proceedings had
in behalf of the intervenor, the United States marshal had been
served with interrogatories as garnishee, and in every legal and
practicable way notified of the writ held by the sheriff, whereby a
valid seizure was effected on petitioner's behalf, to take rank
according to the time at which it was thus executed, and claims, in
consequence, to be entitled to payment out of the fund in
preference to all other attaching creditors.
The attaching creditors, plaintiffs in the circuit court, were
made parties to these petitions of intervention, to which they
appeared and answered. The cause came on for hearing in the circuit
court, and judgment was rendered therein dismissing the petitions
of intervention and distributing the entire fund in court, being
the proceeds of the sales of the attached property, to the other
parties plaintiff in the attachments in that court. The facts in
relation to the levies under the attachments are found by the court
as follows, 20 F. 426:
"Various creditors had obtained attachments on Sunday in this
Court which were also levied on Sunday. The same and other
creditors obtained attachments in several suits, also in this
Court, some early Monday morning, shortly after midnight, and
others between 8 and 10 o'clock A.M., which were also levied upon
the same property."
"The intervenor had obtained his writ from the state court on
Saturday. Early Monday morning, shortly after midnight, and while
the marshal was holding possession of the property under the Sunday
writ alone, the sheriff came to the store where the property was
situated for the purpose of serving the writ, and demanded
entrance, which the marshal refused. The sheriff placed his keepers
around the building, and guarded the same continuously down to the
time of the sale, and served notice of seizure, and subsequently
process of garnishment, upon the marshal in charge of the store
(before the service of any of the Monday writs) who had executed
the process of attachment from this Court. The marshal preserved
his possession without interruption from the moment of seizure down
to the
Page 124 U. S. 1136
time he sold the property under the Monday writs, the Sunday
writs having been abandoned. The property seized was the wines and
brandies, etc., the stock of a wholesale liquor store."
The grounds of law on which the circuit court denied the right
of the intervenor to participate in the distribution of the
proceeds of the sale are stated, as a conclusion of law, as
follows:
"1. As to the effect of what was done by the sheriff, nothing is
before the court except the proceeds of a sale. They, and they
alone, can have an award who show title; and, since all claim under
process against the property of a common debtor, those alone who
show a levy of the process upon the property. For in this state,
the issuance and existence of the process create no lien. It
disposes of this part of the case to say that the sheriff made no
seizure, no caption of the property; its possession was withheld
from him, and access to it was forcibly denied him. Whether this
was done under color of good or bad writ, or without any writ, all
seizure was prevented and no lien was effected. This would end the
case of the intervenor, as to any privilege upon the fund, unless
he can maintain that the marshal, holding under color of a writ
from this Court, can be made to hold also under a writ from the
state court, subsequently served by the garnishment process. The
authorities for this proposition cited are
Patterson v.
Stephenson unreported, decided by the Supreme Court of
Missouri at the April term, 1883, and
Bates v. Days, 17 F.
167. Those cases are put by the courts which decided them upon a
statute of the State of Missouri, which was deemed to have been
adopted by the practice act of Congress regulating the procedure in
the federal courts. In Louisiana we have no such statute, and there
is therefore no need to discuss the question as to what would be
the legal consequences if one existed. In this state, the courts
are to be guided by the doctrine which is settled by the cases of
Hagan v.
Lucas, 10 Pet. 400, and
Taylor v.
Carryl, 20 How. 583, to the effect that when
property susceptible of manual delivery has been seized and is held
by the officer of and under process
Page 124 U. S. 137
from the court of one jurisdiction, it is incapable to be
subjected to seizure by another officer of and under process from
the court of another jurisdiction. The authorities are collated in
Wilmer v. Atlanta & Richmond Air Line Railroad
Company, 2 Woods 427, 428. It follows, then, that since the
goods were and continued to be in the physical possession and
custody of the marshal under writs of this Court, the intervenor
could have acquired and did acquire no interest in the goods under
his writ from the state court, and he can have no claim to the
proceeds arising from their sale."
Proceeding further in its judgment to determine the order of
priority of the creditors who attached under the writs from that
court, the circuit court said:
"No right is claimed, and no right could have been acquired,
under the Sunday writs or seizures. The statute prohibits (Civ.Pr.
art. 207) the institution of suits and all judicial proceedings on
Sunday. The question, then, is as to the priority of the
attachments which were issued on Monday,
i.e., after 12
o'clock on Monday morning."
The judgment then proceeds to award priority among these writs
according to the order in which they were levied, after they came
into the possession of the marshal, by him. On the trial of the
issues upon the petitions of intervention, as appears by a bill of
exceptions in the record, the intervenor offered in evidence a
transcript of the proceedings and judgment of the civil District
Court for the Parish of Orleans in the suit in which he was
plaintiff, against Dreyfus, to the introduction of which the
defendants objected. From that transcript it appears that by a
petition in that cause it was alleged that Pitkin, the Marshal of
the United States for the Eastern District of Louisiana, was
indebted to the defendant, or had property and effects in his
possession or under his control belonging to the defendant,
wherefore it was prayed that Pitkin, as marshal, be made garnishee
and ordered to answer under oath the accompanying interrogatories
filed therewith. A citation was issued thereon to Pitkin requiring
him to answer the interrogatories, which, according to the
sheriff's return, was, together with a copy of the original and
supplemental
Page 124 U. S. 138
petition and interrogatories in the cause, served on Pitkin in
person on October 29, 1883 at 25 minutes past 12 A.M. The sheriff's
return to the writ of attachment is as follows:
"Received October 27, 1883, and on the twenty-ninth day of
October, 1883, proceeded to execute this writ against the movable
property of def't, described more fully in my notice of seizure,
when I found the said property in possession of the U.S. marshal,
and by instructions of pl't'ff's att'y placed my keepers on the
sidewalk in front of said property and kept them continually, both
night and day, until January 25, 1884, when they were withdrawn by
order of the pl't'ff's atty.; also, made general seizure by
garnishment in the hands of J. R. G. Pitkin, marshal of the U.S.
dist. court; from said general seizure nothing has as yet come into
my possession or under my control, and this return is made up to
date for the purpose of enabling the clerk of this court to
complete a transcript of appeal."
It further appears from the transcript that on November 7, 1883,
Pitkin appeared in the civil district court, as garnishee, without
answering the interrogatories, and excepted to the jurisdiction of
the court. On November 16, 1883, judgment was rendered by the civil
district court in favor of Gumbel and against Dreyfus for the sum
of $23,184.57, with interest from October 24, 1883,
"with lien and privilege on the property herein attached, and
that plaintiff's claim be paid by preference over and above all
other creditors, with costs of suit."
On December 6, 1883, a rule was granted by the civil district
court upon Pitkin, requiring him to show cause why he should not
desist from interference with the sheriff in the custody of the
attached property, or be punished for contempt of the court in
obstructing the execution of its orders and judgments, and also a
rule was granted December 17, 1883, upon the marshal, jointly with
the attaching creditors, in the circuit court of the United States,
requiring them to show cause why the property seized, under the
attachment issued at the suit of Gumbel, should not be sold, and
the proceeds of the sale distributed in that cause. On January 4,
1884, some
Page 124 U. S. 139
of the defendants to that rule, without answering the same,
excepted to the jurisdiction of the court, on the ground
"that it is incompetent to either sell the property, or
determine the rank of the attaching creditors, or distribute the
proceeds of said property, for the reason that the said property
was in the hands of the United States marshal under attachment
issued by order of the judge of the Circuit Court of the United
States for the Eastern District of Louisiana at the time of said
pretended seizure by the civil sheriff."
On January 14, 1884, the transcript of the record shows the
following entry: "The rule and exception herein fixed for this day
was by consent of counsel ordered to be continued
indefinitely."
Page 124 U. S. 143
MR. JUSTICE MATTHEWS, after stating the facts as above,
delivered the opinion of the Court.
The grounds on which the circuit court proceeded in denying the
relief prayed for by the intervenor, and which have been reiterated
in argument at the bar, are first that no levy of the writ of
attachment was in fact made by the sheriff, because he did not, and
could not, acquire actual possession of the property sought to be
seized then in the possession of the marshal, it being essential
under the laws of Louisiana to the validity of the levy of such a
writ that the officer should thereby acquire actual and exclusive
possession of the property to be attached, and second that no levy
by the sheriff under his writ of attachment was effected by the
notice served upon the marshal as garnishee, because the marshal,
as an officer of the circuit court of the United States, was not
amenable to, and could not be affected by, process from a state
court.
It may be remarked in the outset that if the intervenor is
entitled to any relief, the mode in which he has sought it is
appropriate. On the motion to dismiss the writ of error,
113 U. S. 545, it
was decided that his right to intervene by petition in this action
was justified by the laws of Louisiana and by the decision of this
Court in
Freeman v.
Howe, 24 How. 450. In
Krippendorf v. Hyde,
110 U. S. 276,
110 U. S. 283,
it was said:
"The grounds of this procedure are the duty of the court to
prevent its process from being abused to the injury of third
persons, and to protect its officers, and its own custody of
property in their possession, so as to defend and preserve its
jurisdiction, for no one is allowed to question or disturb that
Page 124 U. S. 144
possession except by leave of the court. So the equitable powers
of courts of law over their own process, to prevent abuses,
oppression, and injustice, are inherent and equally extensive and
efficient, as is also their power to protect their own jurisdiction
and officers in the possession of property that is in the custody
of the law.
Buck v. Colbath, 3 Wall.
334;
Hagan v. Lucas, 10 Pet. 400.
And when, in the exercise of that power, it becomes necessary to
forbid to strangers to the action the resort to the ordinary
remedies of the law for the restoration of property in that
situation, as happens when otherwise conflicts of jurisdiction must
arise between courts of the United States and of the several
states, the very circumstance appears which gives the party a title
to an equitable remedy, because he is deprived of a plain and
adequate remedy at law, and the question of citizenship, which
might become material as an element of jurisdiction in a court of
the United States, when the proceeding is pending in it, is
obviated by treating the intervention of the stranger to the action
in his own interest as what Mr. Justice Story calls in
Clarke
v. Mathewson, 12 Pet. 164,
37 U. S.
172, a 'dependent bill.' In that case, it was further
stated, speaking of contests between execution or attachment
creditors in the federal courts, on the one hand, and strangers to
the actions claiming title to the property, on the other, that"
"if the statutes of the state contain provisions regulating
trials of the right of property in such cases, it might be most
convenient to make them a part of the practice of the court as
contemplated by §§ 914, 915, 916 of the Revised Statutes."
In the subsequent case of
Covell v. Heyman,
111 U. S. 176, it
was decided that the principle that whenever property has been
seized by an officer of the court by virtue of its process, the
property is to be considered as in the custody of the court and
under its control for the time being, applies both to a taking by a
writ of attachment under a mesne process and to a taking under a
writ of execution. It was there also decided that
"property thus levied on by attachment or taken in execution is
brought by the writ within the scope of the jurisdiction of the
court whose process it is, and as long as it
Page 124 U. S. 145
remains in the possession of the officer it is in the custody of
the law. It is the bare fact of that possession, under claim and
color of that authority, without respect to the ultimate right to
be asserted otherwise and elsewhere, as already sufficiently
explained, that furnishes to the officer complete immunity from the
process of every other jurisdiction that attempts to dispossess
him."
So in
Lammon v. Feusier, 111 U. S.
17,
111 U. S. 19, it
was said:
"When a marshal upon a writ of attachment on mesne process takes
property of a person not named in the writ, the property is in his
official custody and under the control of the court whose officer
he is and whose writ he is executing, and, according to the
decisions of this Court, the rightful owner cannot maintain an
action of replevin against him, nor recover the property
specifically in any way except in the court from which the writ
issued."
It thus appears that plaintiff in error came rightfully into the
for whatever relief, either of a legal or equitable nature, that
court was competent to give. It is equally true that he must depend
exclusively on the circuit court for such relief as he can there
obtain, for it is quite clear that the civil district court
acquired no jurisdiction over the property under the writ of
attachment held by the sheriff, nor any jurisdiction over the
person of the marshal as garnishee, by virtue of the notice served
upon him to answer interrogatories as such. The sheriff acquired no
such possession of the property as to bring it within the custody
of the state court, and the marshal was not amenable to the state
court as its custodian for property which he claimed to hold
officially under process from the circuit court. The circuit court
alone had jurisdiction to inquire into and determine all questions
relating to the property, and the rights growing out of its
custody, held by its own officer under color of its authority,
saving, of course, all rights of action against the marshal
personally for his wrongful and illegal acts resulting in injury to
third persons, except such as involved the legal right to take the
property out of his possession. As we have already seen, and as has
been many times declared by this Court, the equitable powers of the
courts of the
Page 124 U. S. 146
United States, sitting as courts of law, over their own process,
to prevent abuse, oppression, and injustice, are inherent, and as
extensive and efficient as may be required by the necessity for
their exercise, and may be invoked by strangers to the litigation
as incident to the jurisdiction already vested, without regard to
the citizenship of the complaining and intervening party. This is
the equity invoked by the plaintiff in error, which was denied to
him by the circuit court.
It is certainly true, and must be conceded, as was adjudged in
the court below, that Gumbel acquired, under his writ of
attachment, no strict and technical legal standing as an attaching
creditor with an actual levy on his debtor's property. There was no
such actual seizure of the property by the sheriff as was necessary
to constitute a levy at law. That seizure was prevented, and the
attempted levy thus defeated, by the wrongful and illegal act of
the marshal. That officer had taken possession of the goods on
Sunday, under color of process issued the same day, illegal by the
laws of the state, and as such discontinued and abandoned by the
parties. The possession thus acquired was made use of for the
benefit of the plaintiffs in attachment in the circuit court to
defeat the execution of the process of the state court. It was
illegal in the marshal to have taken possession of the goods under
the writs in his hands issued on Sunday. It was his duty, when the
sheriff appeared with a lawful writ from the state court, to
surrender possession to him. His failure and refusal to do so was
an actionable injury in which the present plaintiff in error, in a
suitable action at law, would have been entitled to recover, both
against him and against the attaching creditors for whom and at
whose request he was acting, the whole amount of the loss, measured
by what the plaintiff would have made if he had secured the benefit
of the priority to which he would have been entitled by a first
levy of his attachment upon the property. Instead of resorting to
such an action, the plaintiff in error appealed to the Circuit
Court for that equity which that court was entitled to administer
by virtue of its duty to redress injuries occasioned by the abuse
of its process on the part of its officers and suitors. Why should
that equity not
Page 124 U. S. 147
be administered in this proceeding? The court had before it all
the parties, together with the property which was the subject of
contention. The remedy was plain, simple, and effectual. It could
award to the intervenor the position in respect to the property and
fund in court which, but for the injustice done him by the conduct
of its officer and suitors in the abuse of its process, he would
have acquired by a legal levy under his attachment. Neither the
marshal nor the creditors for whose benefit he acted ought to be
allowed to say that the intervenor had been deprived of the
substance of his rights because, by their illegal and oppressive
conduct, he had been prevented from clothing it with technical
forms. It is a cardinal maxim that no one shall be allowed in a
court of justice to take advantage of his own wrong. No more
flagrant instance of a violation of that fundamental principle can
be conceived than that which is furnished by the circumstances of
the present case. The very ground, and the sole ground, on which
relief is denied to the plaintiff in error is that he has been
prevented from asserting it legally by the violence and wrong of
those who now deny it.
This principle has especial application in cases of proceedings
by attachment.
"The existence of the proceeding by attachment [it is said in
Drake on Attachments § 272] could hardly fail to give rise to
fraudulent attempts to obtain preference where the property of a
debtor is insufficient to satisfy all the attachments issued
against him. When it transpires that there are circumstances
justifying resort to this remedy, the creditors of an individual
usually press forward eagerly in the race for precedence, sometimes
to the neglect of important forms in their proceedings, and
sometimes without due regard to the rights of others. On such
occasions too, notwithstanding the safeguards generally thrown
around the use of this process, and in violation of the sanctity of
the preliminary oath, it has been found that men in collusion with
the debtor, or counting on his absence for impunity, have attempted
wrongfully to defeat the claims of honest creditors by obtaining
priority of attachment on false demands. There is therefore a
necessity -- apparent to the most superficial
Page 124 U. S. 148
observation -- for some means by which all such attempts to
overreach and defraud, through the instrumentality of legal
process, may be summarily met and defeated. Hence provision has
been made in the statutes of some states for this exigency; but
where such is not the case, the courts have broken the fetters of
artificial forms and rules, and attacked the evil with commendable
spirit and effect."
Accordingly, it has been held in New Hampshire, in the absence
of a statute authorizing an attaching creditor to impeach the good
faith of previous attachments, that on a suggestion that a prior
attachment was prosecuted collusively between the plaintiff and
defendant for the purpose of defrauding creditors, the court would
permit a defense to be made by the creditors in the name of the
defendant,
Buckman v. Buckman, 4 N.H. 319, and that a
subsequent attaching creditor might move to dismiss a prior
attachment on the ground that there was no such person as the
plaintiff therein,
Kimball v. Wellington, 20 N.H. 439.
In Virginia it has been held that a junior attaching creditor
may come in and defend against a senior attachment by showing that
the debt for which it issued had been paid.
McCluny v.
Jackson, 6 Grattan 96. In
Smith v. Gettinger, 3 Ga.
140, it was decided upon general principles, and without any aid
from statutory provisions, that a judgment in an attachment suit
may be set aside in a court of law, upon an issue suggesting fraud
and want of consideration in it, tendered by a junior attaching
creditor of the common defendant. In Massachusetts, provision is
made for appropriate relief in such cases by statute.
Lodge v.
Lodge, 5 Mason 407;
Carter v. Gregory, 8 Pick. 165;
Baird v. Williams, 19 Pick. 381;
Swift v.
Crocker, 21 Pick. 241.
The case of
Paradise v. Farmers' & Merchants' Bank,
5 La.Ann. 710, is an important adjudication, having a direct
bearing upon the point now under consideration. A suit in chancery
was instituted in Memphis, Tennessee, by stockholders of a bank
there against the bank and its president and directors, in which a
receiver was appointed, an injunction obtained, and an order for
the delivery of the assets of the bank
Page 124 U. S. 149
to the receiver served on the president, who, during an
unsuccessful attempt to enforce the process of the court, obtained
possession of the assets and ran off with them to New Orleans,
where they were attached in his hands by a creditor of the bank and
were claimed in the attachment suit by the receiver appointed by
the court in Tennessee. The courts of Louisiana ordered the
attached property to be released from the process and delivered to
the receiver. The supreme court of the state, in its opinion,
said:
"The property which thus stands before us for adjudication thus
appears to have been brought within the jurisdiction of this court
in disobedience and in violation of the process of a court of a
sister state and in fraudulent violation of the rights of property
of its real owners. It is proved that the process of the court of
chancery and a writ of injunction and an order directing the
delivery of the assets of the bank forthwith to the receiver were
duly served on Fowlkes (the president), as well as the directors of
the bank. The grounds on which it is contended the judgment of the
district court (ordering the property to be delivered to the
receiver) is to be reversed are (1) that a receiver in chancery
cannot maintain a suit without special authority from the court
which appoints him (2) that the possession of the property attached
not having been in the receiver, it is liable to the process of
attachment at the instance of a
bona fide creditor. We
will not inquire into the technical question whether the authority
of the chancellor is necessary to institute a suit at law; it is
sufficient for us that property in relation to which an order of a
court of a sister state of competent jurisdiction has been issued
has been fraudulently or forcibly withdrawn from its jurisdiction
by a party to the suit, and that the injunction issued in this case
by the chancellor is still in force and binding upon the offending
party. The order of the court of chancery is a sufficient authority
for the intervenor [the receiver] to receive the assets of the
bank, and the delivery to him will be a good delivery binding upon
the bank, as well as in furtherance of justice. We have uniformly
discountenanced all attempts, in whatever form they may be made, of
making our courts instruments for defeating
Page 124 U. S. 150
the action of courts of other states on property within their
jurisdiction by means of clandestine or forcible removal to this
state. The only decree which we render in such cases is that of
immediate and prompt restitution, or one preventing any rights to
be acquired by these attempts to defeat the ends of justice. This
is an answer to the question raised concerning the peculiar right
of the creditor. The only right which he in any event could reach
would be subordinate to the injunction from the operation of which
this property has been attempted to be removed. Not only on general
principles, but on the cases cited by the learned judge who decided
this case, the claim of the plaintiff to subject this property to
attachment is without the shadow of right."
The case just cited was not so flagrant as the present. The
attaching creditor in that case was innocent of any participation
in the wrong involved in the removal of the property from the
jurisdiction of the Tennessee court. Here, the attaching creditors
are the very parties at whose instance and for whose benefit the
wrong upon the intervenor has been perpetrated. Upon general
principles, therefore, and in the exercise of its equitable power
as a court of law to prevent and redress injustice committed upon a
stranger by the abuse of its process on the part of its officers
and suitors, the circuit court ought to have granted the relief to
the intervenor which by its judgment is denied.
There is, however, another ground on which the same conclusion
may safely rest. By § 915 of the Revised Statutes, the circuit
court is authorized, in favor of suitors in that court, to
administer the attachment laws of the state in which the court is
held, and the exercise of this jurisdiction necessarily draws to
itself everything properly incidental, even though it may bring
into the court for the adjudication of their rights parties not
otherwise subject to its jurisdiction. So that in
Krippendorf
v. Hyde, 110 U. S. 276,
110 U. S. 284,
where the statute of Indiana regulating the process of attachment
provided that after the institution of the suit and before final
judgment, any creditor of the defendant might file and prove his
claim with the right to participate in the distribution of the
proceeds of the
Page 124 U. S. 151
attached property, it was said that in an action rightly
instituted in the circuit court, in which the property of the
common debtor was attached, all other creditors might appear in
pursuance of the state law and share in the distribution, although
citizens of the same state with the defendant, and although the
amounts due them were less than the jurisdictional sum of $500.
In the case of
Bates v. Days, 17 F. 167, decided by the
Circuit Court of the United States for the Western District of
Missouri, it was held first by Judge Krekel and affirmed by the
circuit judge McCrary, on a motion for a rehearing, that questions
of priority between attaching creditors, some of whom were
plaintiffs in that court and some in the state court, might be
determined on proceedings for distribution of the proceeds of sale
of the attached property made by the marshal, who had the actual
custody by virtue of the first seizure, upon the ground that § 915
of the Revised Statutes incorporated, as a part of the practice of
the courts of the United States for that district, § 447 of the
Revised Statutes of Missouri, which provided that:
"Where the same property is attached in several actions by
different plaintiffs against the same defendant, the court may
settle and determine all controversies which may arise between any
of the plaintiffs in relation to the property, and priority,
validity, good faith, and effect of the different attachments, and
may dissolve any attachment, partially or wholly, or postpone it to
another, or make such order in the premises as right and justice
may require,"
it being held in that state that if the writs issue from
different courts of coordinate jurisdiction, such controversies
shall be determined by that court in which the first writ of
attachment was issued and levied. In the case referred to, the
first attachment was issued out of the circuit court of the United
States, the marshal having possession of the property by virtue of
a seizure under that writ. The writ of attachment issued out of the
state court was returned by the sheriff, stating that he had levied
the same on the stock of goods of the defendant, subject to the
attachment of the plaintiff, in the United States court, and that
he notified the marshal of the attachment and
Page 124 U. S. 152
levy, and summoned him as garnishee. In deciding the case, it
was said by the district judge that
"The executive officers of courts should understand that when
writs issue from state and federal courts against the same
property, the officer first obtaining possession, on being notified
that a state court officer, as in this case, 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
hostility to each other in administering justice between litigants.
The citizen of the state in the federal court is as much in his own
court as in the courts of the state. The rights he has he cannot be
deprived 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."
The same principle is asserted by the Supreme Court of the State
of Missouri in the case of
Patterson v. Stephenson, 77 Mo.
331, as between coordinate state courts. It was there said:
"On principle and reason, the validity of successive levies by
the same officers on the same property is a recognition of the
practical fact that there may be, after a taking into custody of
the law the property of the debtor, an effectual imposition of
another writ without an actual caption, or a taking away of the
property, or an appropriation of it for the time being, to the
attaching creditor's claim. It is held in such case that the second
writ in the hands of the same officer is executed by him
sub
modo, so"
"it will be available to hold the surplus after satisfying the
previous attachment, or the whole, if that [the first] attachment
should be dissolved. In such case, no overt act on the part of the
officer is necessary to effect the second levy, but a return of it
on the writ will be sufficient. So where the property is in the
hands of the bailee, the officer who placed it there may make
another attachment, without the necessity of an actual seizure, by
making return thereof and giving notice to the bailee."
Drake on Attachments § 269. In
Tomlinson v. Collins, 20
Conn. 364, it is held in such case that the second attachment is
valid even without any notice to the bailee.
Page 124 U. S. 153
Evidently the making of a second levy by the same officer is
recognized because it does not disturb his custody of the property.
If the rule which prevents one officer from levying on goods seized
by another officer rests mainly on the prevention of conflict of
jurisdiction and the interference of one officer with the prior
custodianship of another, then, on the maxim
cessante ratione
legis, cessat ipsa lex, I can see no reason for the operation
or recognition of the rule where the second levy does not produce
such conflict or interference. For it must be borne in mind that
the other requirement of the law, that the levying of an attachment
is an actual seizure of the property, is satisfied in the case of
successive levies by the same officer, by a constructive
application of the succeeding writ "to the surplus after satisfying
the previous attachment." Why, then, was not the act of the sheriff
in the case now under consideration in taking the invoice of the
goods in connection with the constable, "available to hold the
surplus after satisfying the previous attachment," made by the
constable? The constable had the requisite notice. It in nowise
interfered with the prior custody. It produced no conflict, and
would lead to no confusion.
Upon this reasoning, it is contended on behalf of the plaintiff
in error that he was entitled to the benefit of § 1942 of the
Revised Statutes of 1870 of Louisiana, which provides that
"Whenever a conflict of privileges arises between creditors, all
the suits and claims shall be transferred to the court by whose
mandate the property was first seized, either on mesne process or
on execution, and the said court shall proceed to class the
privileges and mortgages according to their rank and privilege, in
a summary manner, after notifying the parties interested."
There are difficulties in the literal application of such a
statutory provision, intended, of course, to regulate the practice
between themselves of coordinate state courts, to cases of
conflicting rights arising between suitors in the federal and state
courts, where the systems are independent. It is impossible to
transfer suits pending in the state courts into the circuit courts
of the United States except as provided by
Page 124 U. S. 154
act of Congress for the removal of such causes. Nevertheless,
the substance of the provision may be applied to the practice of
the courts in attachment proceedings in such a way as to promote
and secure that comity which ought to prevail between federal and
state tribunals exercising concurrent jurisdiction, and to
administer justice in a conflict of rights growing out of their
independent action. Where, under a writ of attachment, the marshal
of the United States has first seized property and taken it into
custody, the exclusive jurisdiction of the circuit court is
established over it and over all questions concerning it, but it
ought not to follow that the property is thereby withdrawn from the
assertion and enforcement of claims against it by those who must
necessarily pursue their remedy in the first instance in a state
court. A creditor residing in the same state with the defendant,
and therefore required to institute proceedings in the state
tribunal, ought to be enabled, by his writ of attachment, to
subject the property of the debtor in due course, and according to
the order of priority, even though, when the sheriff proceeds to
execute the writ, he finds that property in the possession of the
marshal of the United States, and therefore subject to the
jurisdiction of the federal court. In that case, no rule of law or
of convenience is violated if he is permitted, by service of notice
upon the marshal, to make a constructive levy upon the property,
subject to all prior liens and without disturbing the marshal's
possession. This, of course, would not have the effect of
subjecting the marshal personally or officially to answer as
garnishee to the state court as custodian of the property for the
purposes of its jurisdiction, but would entitle the attaching
creditor in the state court to acquire a right in the property and
to appear in the proceeding in the circuit court to enforce it on a
motion to distribute the proceeds of the sale of the attached
property in its custody. This is the recognized practice in those
states where successive attachments are authorized to be served by
the same officer, acting as the executive of different courts, or
by different officers each acting independently of the other. There
seems to be no reason why a similar practice should not be
adopted
Page 124 U. S. 155
as between federal and state tribunals acting concurrently in
the administration of the same laws. Indeed, every consideration of
justice and convenience might be adduced to support it. And such a
practice in the courts of the United States, when authorized by law
in the administration of attachment proceedings as between state
courts, seems to us to be justified as a reasonable implication
from § 915 of the Revised Statutes. That section expressly secures
to plaintiffs in common law causes in circuit and district courts
of the United States similar remedies by attachment against the
property of the defendant to those provided by laws of the state in
which such court is held for the courts thereof, and authorizes the
courts of the United States, by general rules, to adopt from time
to time such state laws as may be in force in the states where they
are held in relation to the same subject. The remedies here spoken
of, of course, are to be understood as they are defined in the
state laws, and subject to the same conditions and limitations. The
authority thus conferred is ample to authorize and sanction the
practice of permitting the constructive levy by attaching creditors
under state process upon the property in possession of the marshal
and their intervention in proceedings in the circuit court of the
United States for the same district, where, as between state courts
of concurrent jurisdiction, a similar method of acquiring and
adjusting conflicting rights is prescribed.
Under such a practice, if in the present case the marshal had
acquired and held possession of the attached goods by virtue of a
valid writ first levied, the plaintiff in error, by making his
constructive levy, subject to the prior right and possession of the
marshal, by giving him the appropriate notice of his claim to hold
him as a garnishee in possession of the property for his benefit as
to any surplus that might remain after payment of prior claims,
would have thereby acquired the right, after establishing his claim
by judgment in the state court and presenting proper proof thereof,
to appear in the circuit court as an intervenor and secure his
right to share in the proceeds of the sale of the attached property
in his proper order.
Page 124 U. S. 156
But the case as actually presented upon the circumstances
disclosed in this record is much stronger for such an intervention.
When the sheriff of the civil district court undertook to levy upon
the goods in question, and served the marshal with notice as
garnishee holding actual possession of the property, the latter was
in fact, as we have already seen, in possession illegally under a
writ which protected his official possession only so far as to
prevent the property from being forcibly withdrawn from the
jurisdiction of the circuit court by judicial process, that court
having acquired jurisdiction, by virtue of the seizure under color
of its authority, to decide all questions concerning it. That writ,
though illegally issued and levied, was not void on its face. In a
certain sense, therefore, the property was
in custodia
legis, and not subject to a levy under process which would
have the effect of taking it out of his possession and control. But
when, in the exercise of jurisdiction by the circuit court in the
determination of the question raised by the petition of
intervention, the nature of the marshal's title and possession came
to be inquired into, it was made apparent that he held the property
illegally as a trespasser, and in that forum could be treated as
holding it in a private and not an official capacity. It was
subject, therefore, in the view of that court, to the consequences
of the notice served upon the marshal as garnishee. It was held by
the marshal as if it had been a surplus arising from the sale of
the property of a defendant on execution, which, as is well
established, may be attached in his hands. Drake on Attachment §
251.
The case therefore stands thus: for the reasons growing out of
the peculiar relation between federal and state courts, exercising
coordinate jurisdiction over the same territory, the circuit court
acquired the exclusive jurisdiction to dispose of the property
brought into its custody under color of its authority, although by
illegal means, and to decide all questions of conflicting right
thereto; the plaintiff in error, having pursued his remedy by
action against his debtor in the state court, to which alone, by
reason of citizenship, he could resort, attempted the levy of his
writ of attachment upon the goods in the possession
Page 124 U. S. 157
of the marshal; not being allowed to withdraw from the marshal
the actual possession of the property sought to be attached, he
served upon the marshal notice of his writ as garnishee; not being
able by this process to subject the marshal to answer personally to
the state court, he made himself a party to the proceedings in the
circuit court by its leave, and proceeded in that tribunal against
its officer and the creditors for whom he had acted; on a regular
trial, it appeared as a fact that at the time of the notice, the
marshal was in possession of the property wrongfully as an officer,
and therefore chargeable as an individual. It was competent for the
circuit court, and, having the power, it was its duty, to hold the
marshal liable as garnishee, and having in its custody the fund
arising from the sale of the property, and all the parties
interested in it before it, that court was bound to do complete
justice between all the parties on the footing of these rights, and
give to the plaintiff in error the priority over all other
creditors to which, by virtue of his proceedings and as prayed for
in his petition of intervention, he was entitled.
On these grounds, the judgment of the circuit court is
reversed and the cause remanded with directions, upon the facts
found in the circuit court, to award judgment in favor of the
intervenor Gumbel in conformity with this opinion.
