A jurisdictional appeal, directly to this Court from the
district court under § 238 of the Judicial Code, will not lie where
the question of jurisdiction presented and decided involved only
principles common to courts in general, and not the jurisdiction of
the district court as a federal court. P.
254 U. S.
173.
Whether the allegations of a bill are adequate to justify the
relief sought is not a question of jurisdiction.
Id.
Where the jurisdiction of the district court is invoked against
nonresident defendants under Jud.Code § 57 to enforce a lien on
property within the district claimed to result from a contract
between them and the plaintiff, a decision quashing service by
publication, followed by a judgment dismissing the bill upon the
ground that
Page 254 U. S. 167
the contract alleged create no lien upon or right
in
rem in such property, does not involve the jurisdiction of the
court a a federal court.
Id. Chase v. Wetzlar,
225 U. S. 79,
distinguished.
Questions arising under the Constitution are not presented in
this case. P.
254 U. S.
174.
Appeal dismissed.
The case is stated in the opinion.
Page 254 U. S. 169
MR. JUSTICE DAY delivered the opinion of the Court.
The appellant, plaintiff below, a resident and citizen of the
State of New Jersey, filed a bill of complaint against David
Costaguta, Marcos A. Algiers, Alajandro Sassoli, and Eugenio
Ottolenghi, individually and as copartners composing the firm of
David Costaguta & Co., asserting that they, and each of them,
were aliens, and residents of the Republic of Argentina, South
America. The bill joined as defendants Renado Taffell, a British
subject, resident of New York and the southern district thereof,
and the American-European Trading Corporation, organized under the
laws of New York.
The bill sets forth at length a contract whereby it is alleged
that a copartnership was formed between the plaintiff and David
Costaguta & Co., for the buying and selling of hosiery. The
bill alleges that, to carry the contract into effect, a place of
business was established in New York City; that disagreements arose
between the parties; that plaintiff elected to terminate the
contract and demanded a liquidation of the merchandise and an
accounting; that the firm of David Costaguta & Co., caused the
American-European Corporation to be organized under the laws of New
York, and that said firm caused certain assets of the copartnership
to be transferred to the corporation in fraud of the plaintiff, and
which assets, it was alleged, were within the territorial
jurisdiction of
Page 254 U. S. 170
the Southern District of New York. Plaintiff prayed a
dissolution of the alleged copartnership, the liquidation of the
property thereof, that the nonresident defendants account for their
acts and transactions, and that it be established what sum, if any,
remained due to the plaintiff, that the plaintiff be decreed to
have a lien on all of the property of the defendants and on the
property and assets of the American-European Trading Corporation,
that a receiver
pendente lite be named. An order was
prayed for the delivery of the property to the receiver, and an
injunction to restrain its transfer or disposition. A temporary
restraining order was asked pending the hearing and the return of
the rule
nisi prohibiting in any manner or form
interference with the property or removing the same from the
jurisdiction of the court. An order was issued requiring the
defendants to show cause why such receiver
pendente lite
should not be appointed, and the defendants required to transfer
the property to such receiver, and enjoining them from otherwise
transferring the same. The subpoena and order for the rule were
served on the resident defendants American-European Trading
Corporation and Taffell. Plaintiff then procured an order for
service upon the nonresident defendants by publication under § 57
of the Judicial Code. The nonresident defendants filed a special
appearance for the purpose of asking the court to quash and set
aside the order for service by publication, and for an order
requiring the plaintiff to show cause why an order should not be
made vacating and setting aside the service by publication, and
also to vacate, quash, and set aside certain alleged service on an
agent of the firm in the Southern District of New York. A motion
was also made by the American-European Trading Corporation and
Taffell, by special appearance, for the purpose of opposing the
jurisdiction. The district court denied the plaintiff's motion for
an injunction and receiver, and granted the nonresident
Page 254 U. S. 171
defendants' motion to vacate the order for service by
publication. This resulted in the dismissal of the plaintiff's bill
by final decree, and the case was brought here by the plaintiff
under § 238 of the Judicial Code upon the question of jurisdiction
of the court.
The district judge, after entering the decrees of dismissal,
made a certificate as follows:
"I hereby certify that said decrees were entered solely because
the case as made by the bill did not set forth a legal or equitable
claim to or lien on the property in the district, of which this
Court would have jurisdiction within the meaning of § 57 of the
Judicial Code, or in which this Court could render a judgment
otherwise than a judgment
in personam against the
nonresident aliens who appeared specially and objected to the
jurisdiction of the court."
The judge also delivered an opinion, which is in the record,
holding that, under the terms of the contract, the plaintiff had no
right in the assets as such, and no partner's lien upon the
property, but was confined to his rights
in personam
against the firm, and that therefore there could be no service by
publication under § 57 of the Judicial Code. That section is a
reenactment of § 8 of the Act of March 3, 1875, c. 137, 18 Stat.
472. It provides for service by publication when, in any suit
commenced in any district court of the United States to enforce any
legal or equitable lien upon, or claim to, or to remove any
incumbrance or lien or cloud upon the title to real or personal
property within the district where such suit is brought, one or
more of the defendants therein shall not be an inhabitant of or
found within the said district, or shall not voluntarily appear
thereto.
*
Section 238 of the Judicial Code provides that, the case
Page 254 U. S. 172
being one in which the jurisdiction of the court is in issue,
that question shall be certified to this Court.
The appellees challenge the jurisdiction of this Court to
entertain this appeal on the ground that the case does not present
a jurisdictional issue properly reviewable by this Court.
Page 254 U. S. 173
Since the decision of
Shepard v. Adams, 168 U.
S. 618, it has been the accepted doctrine that, where
there is a contention that no valid service of process has been
made upon the defendant, and the judgment is rendered without
jurisdiction over the person, such judgment can be reviewed by
direct appeal to this Court. This principle was restated and
previous cases cited as late as
Merriam v. Saalfield,
241 U. S. 22,
241 U. S.
26.
It is equally well settled that, where the question of
jurisdiction presented and decided turns upon questions of general
law, determinable upon principles alike applicable to actions
brought in other jurisdictions, the jurisdiction of the court as a
federal court is not presented in such wise as to authorize the
jurisdictional appeal directly to this Court, and the question must
be decided as other questions are -- by the usual course of
appellate procedure, giving review in the circuit court of appeals.
Louisville Trust Co. v. Knott, 191 U.
S. 225;
Bache v. Hunt, 193 U.
S. 523;
Fore River Shipbuilding Co. v. Hagg,
219 U. S. 175;
Scully v. Bird, 209 U. S. 481,
209 U. S. 485;
Bogart v. Southern Pacific Co., 228 U.
S. 137.
That the question of the adequacy of the allegations of the bill
to justify the relief sought does not present a jurisdictional
question was held in
Smith v. McKay, 161 U.
S. 355;
Illinois Central R. Co. v. Adams,
180 U. S. 28;
Louisville & Nashville R. Co. v. Western Union Telegraph
Co., 234 U. S. 369,
234 U. S. 372;
Darnell v. Illinois Central R. Co., 225 U.
S. 243;
Public Service Co. v. Corboy,
250 U. S. 153,
250 U. S.
162.
The opinion of the court below, read in connection with the
certificate, shows that it was held that the contract set up in the
bill gave no lien upon or right
in rem in the assets
sought to be reached within the district. The question was
presented, the court, in the exercise of jurisdiction, after an
examination of the contract set forth in the bill and a
consideration of its terms, determined it
Page 254 U. S. 174
upon principles which would have been equally applicable had the
question been presented in other jurisdictions. Its decision
therefore did not involve the jurisdiction of the federal court as
such, which, it is settled, is required in order to justify a
direct appeal to this Court.
In
Chase v. Wetzlar, 225 U. S. 79, the
Act of March 3, 1875, now § 57 of the Judicial Code, was involved,
and there was an attempt to have service on alien defendants by
publication under the provisions of the statute. The issue made was
as to whether there was property of the defendants within the
jurisdiction of the court. That issue was held to present a
question of jurisdiction properly reviewable in this Court under §
238. In the case now presented, no question is made as to the
presence of property in the district. The attempted service was set
aside, and the bill dismissed, upon consideration of the
allegations of the bill which, it was held, upon application of
general principles, did not show that the plaintiff had any lien
upon or interest in the property authorizing him to invoke the
procedure outlined in § 57 of the Judicial Code.
As to the contention that the whole case is here upon a
constitutional question because of the procedure in the court
below, § 238 provides that, when a case comes here upon a question
of jurisdiction, that question alone shall be certified. Moreover,
we find no merit in the alleged deprivation of constitutional
rights so as to present questions arising under the
Constitution.
It follows that the appeal must be dismissed for want of
jurisdiction.
Dismissed.
* Section 57:
"When, in any suit commenced in any district court of the United
States to enforce any legal or equitable lien upon or claim to, or
to remove any incumbrance or lien or cloud upon the title to real
or personal property within the district where such suit is
brought, one or more of the defendants therein shall not be an
inhabitant of or found within the said district, or shall not
voluntarily appear thereto, it shall be lawful for the court to
make an order directing such absent defendant or defendants, to
appear, plead, answer, or demur by a day certain to be designated
which order shall be served on such absent defendant or defendants,
if practicable wherever found, and also upon the person or persons
in possession or charge of said property, if any there be; or,
where such personal service upon such absent defendant or
defendants is not practicable, such order shall be published in
such manner as the court may direct, not less than once a week for
six consecutive weeks. In case such absent defendant shall not
appear, plead, answer, or demur within the time so limited, or
within some further time to be allowed by the court in its
discretion, and upon proof of the service or publication of said
order and of the performance of the directions contained in the
same, it shall be lawful for the court to entertain jurisdiction,
and proceed to the hearing and adjudication of such suit in the
same manner as if such absent defendant had been served with
process within the said district; but said adjudication shall, as
regards said absent defendant or defendants without appearance,
affect only the property which shall have been the subject of the
suit and under the jurisdiction of the court therein, within such
district, and when a part of the said real or personal property
against which such proceedings shall be taken shall be within
another district, but within the same state, such suit may be
brought in either district in said state:
Provided,
however, that any defendant or defendants not actually
personally notified as above provided may at any time within one
year after final judgment in any suit mentioned in this section,
enter his appearance in said suit in said district court, and
thereupon the said court shall make an order setting aside the
judgment therein and permitting said defendant or defendants to
plead therein on payment by him or them of such costs as the court
shall deem just, and thereupon said suit shall be proceeded with to
final judgment according to law."