J. H. A. resides in Reading in Massachusetts. J. A. his father,
who had formerly resided there, removed to Lancaster in New
Hampshire, of which he has since been a resident. The son becoming
insolvent, the father became surety for one of his assignees, and
for that purpose signed a bond in which he was described as of
Reading.
Held that, no one being prejudiced thereby, this
did not estop the father in a suit in Louisiana between him and the
assignee, involving a claim to property of the insolvent there,
from showing that he was not a citizen of Massachusetts, but a
citizen of New Hampshire.
In Louisiana, a transfer of the estate of an insolvent debtor by
judicial operation is not binding upon the citizens and inhabitants
of Louisiana or of any other state except the state in which the
insolvent proceedings have taken place -- at least until the legal
assignee has reduced the property to possession or done what is
equivalent thereto.
In equity. Decree dismissing the bill. Plaintiff appealed. The
case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This suit was originally commenced in the Civil District Court
for the Parish of Orleans, Louisiana, by petition filed by John M.
B. Reynolds against John Adden, to restrain him from further
prosecuting two certain suits in the same court or proceeding upon
execution therein, and to have the same declared illegal and void.
The suits referred to had been commenced by said John Adden by
attachment against the goods of his son, John H. Adden, situated in
a store in New Orleans occupied by said John H. Adden for carrying
on his business therein under the management, as alleged, of the
father, John
Page 136 U. S. 349
Adden, the son being a resident of Reading, Massachusetts. The
grounds of the relief sought, as stated in the petition, are that
on the 10th of March, 1882, John H. Adden, a resident of Reading,
in the County of Middlesex and State of Massachusetts, presented a
petition of insolvency to the proper court there, from which a
warrant was issued for the seizure of all his property, real and
personal, and other proceedings were had as usual in such cases,
and at a meeting of the creditors on the 23d of March, one Stillman
E. Parker and the petitioner, Reynolds, were appointed assignees,
and accepted the said trust, and gave bonds as required by law, the
said John Adden executing the bond of said Parker as his surety;
that, in the schedule of assets filed by the insolvent with his
petition of insolvency, there appeared to be in his store, No. 58
Custom House Street, New Orleans, about 600 cases of shoes, valued
at $18,341.47, and other property, accounts, notes, etc., amounting
to about $28,000, notes and accounts due to the Boston store
amounting to about $10,000, and other assets in Boston amounting to
about $3,000; that, on the petitioner's going to New Orleans to
take possession of the assets there, he discovered that the said
John Adden (the father) had instituted suit in that court against
John H. Adden for $20,000 on the 16th of March, 1882, and had
issued an attachment therein, and attached the property, and
obtained judgment by default on the 3d of April, 1882, with lien
and privilege on the property attached, and that on the 4th of
April, 1882, he had obtained a second attachment in another suit
upon notes of said John H. Adden amounting to over $6,000; all
which proceedings of John Adden the petitioner alleged to be
illegal, null, and void by reason of the insolvency proceedings in
Massachusetts, he, the said John Adden, being a resident of
Massachusetts, and bound thereby, as well as for irregularities in
said proceedings themselves, referred to in the petition, and the
complicity, as alleged, of the said John Adden with his said son in
the measures taken by the latter. The petitioner alleged that he
had applied to his co-assignee, Stillman E. Parker, to join him in
the petition, but he had refused.
A rule to show cause why a writ of injunction should not
Page 136 U. S. 350
issue was granted and heard by the court, upon which hearing a
certified copy of the insolvent proceedings in Massachusetts was
presented and received in evidence, and on the 15th of May, 1882, a
preliminary injunction was issued, restraining the defendant John
Adden from enforcing his judgment in the first suit, and from
proceeding further in the second, also restraining the sheriff of
the parish from selling the goods seized by him. A motion to
dissolve the injunction was subsequently made, and after argument
was refused. The principal grounds of refusal were that John Adden
was a resident of Massachusetts, and had become surety of one of
the assignees of his son, and was therefore estopped and bound by
the proceedings in insolvency.
On the 24th of May, 1883, the defendant John Adden filed a
petition for the removal of the cause into the Circuit Court of the
United States for the Eastern District of Louisiana. In this
petition, Adden contends, among other things, that the insolvent
laws of Massachusetts, under which Reynolds claims the property in
controversy, impair the obligation of the contract between the
petitioner and John H. Adden, and deprive the petitioner of his
property without due process of law, and are in violation of the
Constitution of the United States; that he had already, in an
answer filed in the case, claimed that the said insolvent laws
deprived him, who was a citizen of the State of New Hampshire, of
the privileges and immunities of citizens in the several states,
and were in violation of the fourth article of the Constitution of
the United States. And after setting up various other claims of
privileges and immunities under the Constitution of the United
States alleged to be violated by said insolvent proceedings, the
petitioner further stated that at the commencement of this suit,
and continuously since, he had been, and still was, a citizen of
the State of New Hampshire, and that said Reynolds and John H.
Adden then were, and had continually been, citizens of
Massachusetts, and that Duffy, the Sheriff of the Parish of
Orleans, was and is a citizen of the State of Louisiana. He further
represented that in said suit the real controversy was between said
Reynolds and the petitioner,
Page 136 U. S. 351
and that John H. Adden and Duffy, the sheriff, were not
necessary, but merely formal, defendants. The civil district court
refused the application for the removal of the cause; but, a
certified copy of the proceedings being presented to the circuit
court of the United States, that court took jurisdiction of the
case and ordered it to be docketed on the equity side of the court.
A motion was made to remand the cause to the state court, which
after argument was refused. Evidence was taken as to the residence
and citizenship of the defendant John Adden, and as to his
connection with the business of his son, and the general character
of the proceedings had in the insolvency case in Massachusetts, and
in the suits instituted by John Adden in New Orleans at the final
hearing. The court dismissed the petition or bill of complaint, and
the petitioner, Reynolds, has appealed.
The first question which we shall consider is as to the
jurisdiction of the circuit court of the United States. It is
strenuously contended by the appellant that the case ought not to
have been removed from the state court, and ought to have been
remanded to that court upon the motion made for that purpose. The
ground of this contention is that John Adden, the defendant, was a
citizen of Massachusetts, and not a citizen of New Hampshire, as
alleged by him in his petition for removal, or that, if he was not
in fact a citizen of Massachusetts, he was estopped from denying
that he was such by his acts and declarations in the proceedings,
both in Massachusetts and in New Orleans. In the insolvency
proceedings in Massachusetts, he became, on the 23d day of March,
1882, the surety of Stillman E. Parker, one of the assignees of
John H. Adden, and in the same bond he is described as "John Adden,
of Reading, in the County of Middlesex." It was also testified by
one Ambrose Eastman that John Adden, being examined on oath at the
meeting of the creditors of his son in Cambridge, Massachusetts, on
the 23d of March, 1882, testified that he resided in the Town of
Reading, County of Middlesex, in Massachusetts. It is also shown
that in his petitions for the attachments issued at his suit in New
Orleans on the 16th of March, 1882, and the 4th of April the same
year, he is described as
Page 136 U. S. 352
"John Adden, residing in the State of Massachusetts." But these
petitions were not signed by him, but by his attorneys in New
Orleans. On the other hand, the overwhelming evidence of a great
number of witnesses puts the matter beyond all doubt that, while he
had at a former period resided in Reading, Massachusetts, he had
removed from thence to Lancaster, in the State of New Hampshire, in
October, 1874, and had continued to reside in Lancaster ever since
that time. His being described as residing at Reading at the time
of the insolvency of his son was a natural inadvertence arising
from the fact that, in consequence of the intimate relations
between him and his son, who did reside at Reading, he was often at
that place on business or social visits. The only question,
therefore, that arises on this branch of the subject is whether he
is permitted to show the truth, or whether he is estopped by the
papers before referred to, in which he is described as residing in
Massachusetts. The evidence of Ambrose Eastman is contradicted by a
number of witnesses equally in a position to hear what Adden did
testify, and there is no question in our minds that Mr. Eastman was
mistaken in his recollection. As to the papers relied on by the
appellant, we are of opinion that Adden was not concluded by the
descriptions of persons contained in them. He was so often in
Boston and Reading, about the business of his son and in
intercourse with him, that the descriptive words "of
Massachusetts," or "of Reading, Massachusetts" or "residing in
Massachusetts," might easily have been overlooked, and the same
words in the petitions for attachment in New Orleans were applied
and used by his counsel there, and not by himself. They present no
case upon which an estoppel as to the citizenship of Adden can be
founded. He might even have been a temporary resident of
Massachusetts, and yet a citizen in New Hampshire. So that, if the
descriptive words were to be taken as true, they would not be
decisive. But they were words of mere description, and as such they
could not estop him from showing the truth and the fact. They
induced no conduct on the part of the appellant, or of an of the
creditors of John H. Adden, which operated to their prejudice. They
contained no element of
Page 136 U. S. 353
estoppel. We are satisfied, therefore, that the cause was
properly removed from the state court, and that the circuit court
of the United States had jurisdiction thereof.
The next question to be considered is as to the legal right of
the defendant John Adden to institute the suits and issue the
attachments which were prosecuted by him at New Orleans. As a
resident and citizen of New Hampshire, was he concluded by the
insolvent proceedings in Massachusetts, and the incidental transfer
of the property of John H. Adden therein. If he was, then he had no
right to take the proceedings which he did take in Louisiana. Had
he been a citizen and resident of Massachusetts, the question would
have been a different one. We have recently decided, in the case of
Cole v. Cunningham, 133 U. S. 107,
that a creditor, who is a citizen and resident of the same state
with his debtor, against whom insolvent proceedings have been
instituted in said state, is bound by the assignment of the
debtor's property in such proceedings, and, if he attempts to
attach or seize the personal property of the debtor situated in
another state, and embraced in the assignment, he may be restrained
by injunction by the courts of said state in which he and his
debtor reside. That was a case arising in Massachusetts, and the
effect and operation of assignments made by debtors of personal
property belonging to them in other states is elaborately discussed
by the Chief Justice, delivering the opinion of this Court. It was
held that where a debtor and his creditor were both citizens and
residents of Massachusetts, and the former went into insolvency,
and regular proceedings under the insolvent laws of the state were
had, the creditor might be enjoined by the courts of Massachusetts
from attaching goods and credits of the debtor in New York,
although in the latter state such attachment would be legal and
valid. But that is not the present case. Here it is proved beyond
doubt that John Adden was not a citizen or resident of
Massachusetts, but was a citizen and resident of New Hampshire, and
the question is whether, as such citizen of New Hampshire, he had a
right to prosecute his claims against John H. Adden by attachment
of the goods of the latter in the State of Louisiana by the laws of
the latter
Page 136 U. S. 354
state. It is by the laws of Louisiana that the question must be
decided. Every state exercises to a greater or less extent, as it
deems expedient, the comity of giving effect to the insolvent
proceedings of other states, except as it may be compelled to give
them full effect by the Constitution of the United States. Where
the transfer of the debtor's property is the result of a judicial
proceeding, as in the present case, there is be no provision of the
Constitution which requires the courts of another state to carry it
into effect, and as a general rule no state court will do this to
the prejudice of the citizens of its own state.
But, without discussing the rules adopted in different states on
this subject, which are fully examined and commented upon in the
treatise on private international law, our present inquiry is
confined particularly to the doctrine of the courts of Louisiana,
and here we are entirely free from embarrassment. By a succession
of cases decided by the Supreme Court of Louisiana, it has become
the established law of that state that such transfers by judicial
operation are not binding upon the citizens and inhabitants of
Louisiana, or of any other state except the state in which the
insolvent proceedings have taken place, at least until the legal
assignee has reduced the property into possession, or done what is
equivalent thereto.
Olivier v. Townes, 2 Martin (N.S.) 93;
Tyree v. Sands, 24 La.Ann. 365;
Lichtenstein v.
Gillett, 37 La.Ann. 522. In the case last cited, a receiver
under a creditors' bill, appointed by a chancery court of Georgia,
sought to recover possession of the property of the defendants
adversely to the rights acquired by the plaintiffs under an
attachment of that property in Louisiana. The plaintiff's
attachment was effected on the 26th of April, 1883. The
intervention of the receiver was filed December 13, 1883. The
Supreme Court of Louisiana, speaking through Mr. Justice Poche,
after adverting to the distinction between a voluntary assignment
and a compulsory one executed by order of a court, proceeds to
say:
"We do not propose to deny to him [the receiver], and we must
not be understood as debarring him absolutely of, any right under
his appointment to claim and obtain possession of the property
Page 136 U. S. 355
of Gillett Brothers, in case the exercise of such right does not
militate with or destroy any existing rights acquired by creditors
under proceedings instituted in our courts. In his brief, his
counsel concedes that the claim which he now presses on our
favorable consideration could not be enforced to the detriment of
previously acquired rights of our own citizens. But he contends
that the protection cannot be extended to plaintiffs, for the
reason that they are residents of the State of New York. . . . In
our opinion, it is sufficient that the creditor who has acquired
rights by legal process in our courts be not a resident or a
citizen of the state whose court has appointed a receiver who urges
claims adverse to his acquired rights in our courts. The plaintiffs
in this case, residents of New York, are not more amenable to the
jurisdiction of the Georgia courts than would be a citizen of
Louisiana, and they are legally entitled to the full protection of
our courts against the claims of intervenor."
Such, therefore, being the rule of comity applied by the courts
of that state, we have no hesitation in saying that the defendant
John Adden had a perfect right to prosecute his claims in the
manner he did. No rule of law stood in his way, and nothing in the
circumstances of the case, so far as we have been able to discover,
prevented him from taking the course he did. It will be observed
that his first suit in New Orleans was commenced on the 16th of
March, 1882, a week prior to the meeting of the creditors in
Cambridge and the appointment of the assignees in insolvency. He
had not then done anything to interfere with his right to sue, and
he did not afterwards do anything to take away that right. His
going security on the bond of Parker as one of the assignees of his
son is not shown to have any significancy in the matter in
question. There was no reason why he should not approve of and
acquiesce in the insolvent proceedings that were undertaken, nor
why he should not, as an act of friendly accommodation, sign the
bond of Parker, who seems to have been his brother-in-law. None of
these things committed him to a position inconsistent with the
prosecution of his claim in New Orleans.
Page 136 U. S. 356
We have given due attention to the minor points raised by the
appellant's counsel, but do not find anything therein which calls
for a reversal of the decree. The decree of the circuit court is
therefore
Affirmed.