1. Review is confined to the questions urged in the petition for
certiorari. P.
307 U. S.
303.
2. The fact that he is an employee of a corporation of which the
plaintiff in the case is president does not disqualify a notary
public under § 11532, General Code of Ohio, from taking an
affidavit in attachment or garnishment. P.
307 U. S.
303.
Page 307 U. S. 300
3. Under the General Code of Ohio, §§ 11279, 11819, when a civil
action for money has been begun by filing the petitioner and
issuing summons, an attachment or garnishment is not premature
because obtained prior to personal service or before commencement
of service by publication. P.
307 U. S.
306.
4. Under R.S. §§ 646 and 915, where an action has been removed
to the federal court after the state court had acquired
jurisdiction
in rem by attachment or garnishment, the
federal court, without prior personal service of summons, has the
same jurisdiction to extend the attachment or garnishment to other
property as the state court would have had under the state law if
the case had not been removed.
Big Vein Coal Co. v. Read,
229 U. S. 31,
limited. P.
307 U. S.
312.
100 F.2d 844 reversed.
Certiorari, 306 U.S. 626, to review the affirmance of a judgment
discharging an attachment and garnishment and dismissing the
petition, in an action removed from a state court on the ground of
diverse citizenship.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The case is here on a writ of certiorari to the United States
Circuit Court of Appeals for the Sixth Circuit. We granted the writ
because the court below had decided an important question of local
law in a way probably in conflict with applicable local decisions,
and probably had misconstrued certain federal statutes and a
decision of this Court thereunder.
The basic question here involved is whether a federal district
court, in the absence of jurisdiction
in personam and
after removal of a cause from a state court where jurisdiction
in rem over certain property of a defendant
Page 307 U. S. 301
has already been acquired, can issue an order of attachment or
garnishment against other property of the same defendant.
Petitioner, a resident of Ohio, brought suit on June 19, 1930,
in a state court in Ohio against respondent, a nonresident
corporation organized under Canadian law, on a contract claim for
personal services rendered. [
Footnote 1] Summons was concurrently issued, but personal
service was never had and, simultaneously, an affidavit in
attachment and garnishment was filed. A second affidavit in
attachment and garnishment was filed on June 27, 1930, naming
additional persons, and, shortly thereafter, certain funds and
property of respondent were garnisheed. Subsequently, service by
publication was completed, and, soon afterwards, and before
judgment, respondent appeared specially and obtained a removal of
the cause to the District Court of the United States for the
Northern District of Ohio, Western Division. In the District Court,
respondent also appeared specially and moved to quash the service
by publication and to dismiss the attachment and garnishment.
Nothing further was done in the cause for over five years. Then, on
February 17, 1936, petitioner, with leave of the District Court,
filed a supplemental and amended petition repeating in substance
the allegations of the original petition, and a supplemental
affidavit in garnishment which named as garnishees the same persons
designated in the original affidavits of June, 1930, in the state
court. On the same day, the District Court issued an order of
attachment and notices to garnishees. Under the latter, additional
funds in the hands of one of the garnishees were reached. And, on
April 11, 1936, respondents again appeared specially in the
District
Page 307 U. S. 302
Court, and moved,
inter alia, to dismiss the attachment
and garnishment under the supplemental affidavit of February 17,
1936. After removal to the District Court, there was neither
personal service, nor, so far as appears, service by
publication.
By its motions of January 26, 1931, and April 11, 1936,
respondent asserted that the affidavits in attachment and
garnishment were defective and void under Ohio law; that there was
no property of respondent within the jurisdiction of the District
Court or the state court on which any valid attachment could be or
was levied; that there was no property of respondent in the
possession of any of the garnishees; that the attachment and
garnishment and the service of summons were void by reason of
incorrect designation of respondent; that there was no lawful
service of summons under the supplemental and amended petition made
on respondent; that the supplemental attachment and garnishment
under the amended petition were also void for lack of personal
service, and that the District Court had no jurisdiction over
either the respondent or its property appropriate for the
maintenance of this action.
After oral argument on respondent's motions, the District Court
entered an order discharging the attachment and garnishment and
striking the petition from the files of the court on the grounds
that the affidavits in attachment and garnishment, dated June 19
and June 27, 1930, were defective and void, and that the
supplemental affidavit in attachment and garnishment was also void
and ineffective, since no personal service had been made on
respondent. On appeal to the Circuit Court of Appeals, the judgment
was affirmed on the grounds that the original attachment or
garnishment in the state court was premature and void; that, on
removal, the federal District Court could not validate an
attachment not perfected in the state court proceeding, and that
attachment may not
Page 307 U. S. 303
issue in a federal District Court until the defendant has been
personally served or has voluntarily appeared.
Of the various questions raised below and briefed here, only
those urged in the petition for certiorari and incidental to their
determination will be considered on review.
General Talking
Pictures Corp. v. Western Electric Co., 304 U.
S. 175;
Connecticut Railway & Lighting Co. v.
Palmer, 305 U. S. 493.
Before coming to the basic question here involved -- namely,
whether the garnishment secured in the District Court under the
supplemental affidavit of February 17, 1936, was void -- there are
two preliminary questions. These are (1) whether the notary public
before whom the affidavits in attachment and garnishment of June 19
and June 27, 1930, were taken was disqualified, thus rendering the
garnishment proceedings void and of no effect, and (2) whether the
garnishments obtained in the state court were premature and void
because they were secured without personal service and prior to the
first publication of notice of constructive service.
First. The Ohio General Code provided that an affidavit
might be used to obtain a provisional remedy such as attachment or
garnishment (§ 11523), and that an affidavit might be made before
any person authorized to take depositions (§ 11524) . Sec. 11532
provided that
"The officer before whom depositions are taken must not be a
relative or attorney of either party, or otherwise interested in
the event of the action or proceeding."
The notary in question was D. W. Drennan, a member of the Ohio
bar and of the bar of the District Court. Although Drennan had some
private practice of his own, he was in the employ of a corporation,
of which petitioner was president, and previously in the employ of
a predecessor partnership, of which petitioner was a member. But he
did not represent petitioner in this case, nor had he ever
represented him as personal counsel, nor was he consulted
Page 307 U. S. 304
by petitioner with reference to this case, nor was he related to
petitioner, nor did he have any financial stake in the outcome of
this suit. His sole connection with the case was that he acted as
notary on a few papers. Furthermore, the petition in this case
alleged a cause of action personal to petitioner, not one on behalf
of the corporation by which Drennan was employed or on behalf of
its predecessor partnership.
Since Drennan was not a "relative or attorney" of petitioner, he
was not disqualified to take the affidavit unless, within the
meaning of the Ohio statute, he was "otherwise interested in the
event of the action or proceeding." The District Court held that he
was so interested. We do not so interpret the Ohio law. Absent some
legal or material interest, it seems to us, on the basis of the
Ohio authorities which we have found, that there must be some
immediate interest in the action akin to that of a relative in
order for the notary to run afoul of the statutory prohibition.
Disability thus depends on the particular circumstances of each
case -- the degree of intimacy in relationship between petitioner
and notary. In
Rhinelander Paper Co. v. Pittsburgh Co., 15
Ohio Cir.Ct. (N.S.) 286, an Ohio court held that a young man
working as a salaried employee for a firm of attorneys retained in
the case was not disqualified by the foregoing section from taking
an affidavit in the case as notary. The interest which disqualifies
under the Ohio statute, said that Court, is "some legal, certain,
and immediate interest such as formerly disqualified a witness from
testifying."
Id., 15 Ohio Cir.Ct. (N.S.) 286. Certainly,
if an employee of one who himself is disqualified to act as notary
is qualified so to act, an employee of a corporation whose officer
is suing not on behalf of the corporation but for himself would
seem to be similarly qualified under Ohio law. This seems to us
especially persuasive since the notary in question was, in fact,
taking not a deposition, but an affidavit, and since
Page 307 U. S. 305
the affidavit was not for use as evidence. [
Footnote 2] Accordingly, we conclude that the
affidavits of June 19 and June 27, 1930, were not defective because
they were sworn to before D.W. Drennan. [
Footnote 3]
Page 307 U. S. 306
Second. Sec. 11279 of the Ohio General Code provides
that "[a] civil action must be commenced by filing in the office of
the clerk of the proper court a petition, and causing a summons to
be issued thereon." § 11819 provides that,
"In a civil action for the recovery of money at or after its
commencement, the plaintiff may have an attachment against the
property of the defendant"
upon various enumerated grounds. In this case, the petition was
filed, summons was issued, and an affidavit in attachment and
garnishment was filed -- all on June 19, 1930. It would seem
therefore that § 11819 was satisfied. But the Circuit Court of
Appeals held that an attachment which issued before personal
service was obtained, or before the beginning of publication for
substituted service, was premature and void. Under that test, the
attachments and garnishments sought in the state court on June 19
and June 27, 1930, were defective, since personal service was never
had, and since service by publication was not commenced until
several months later.
The Circuit Court of Appeals reached this conclusion in reliance
upon its earlier decision in
Doherty v. Cremering, 83 F.2d
388, and upon the decision of the Supreme Court of Ohio in
Seibert v. Switzer, 35 Ohio St. 661.
We think the Circuit Court of Appeals erred. The chronology of
events in the
Doherty case is the same as the chronology
here -- attachment was issued on the day the petition was filed,
and substantially in advance of commencement of service by
publication. Personal service was not had. The court relied upon §
11230 of the Ohio General Code, and upon
Seibert v. Switzer,
supra. § 11230 is contained in Chapter 2 of Division 1 of
Page 307 U. S. 307
Title IV of the Ohio General Code. Title IV is entitled
"Procedure In Common Pleas Court." Chapter 2 of Division 1 is
entitled "Limitation Of Actions." § 11230 provides:
"An action shall be deemed to be commenced
within the
meaning of this chapter as to each defendant at the date of
the summons which is served on him or on a codefendant who is a
joint contractor, or otherwise united in interest with him. When
service by publication is proper, the action shall be deemed to be
commenced at the date of the first publication, if it be regularly
made."
(Italics added.)
It seems clear to us that the words "[a]n action shall be deemed
to be commenced within the meaning of this chapter" confine the
operation of the section to matters concerning the limitation of
actions the subject to which the chapter is expressly devoted. The
Supreme Court Commission of Ohio, in
Becher v. Shawhan, 41
Ohio St. 271, so interpreted § 4988, Rev.Stats. (now § 11231 of the
Ohio General Code), which provided:
"An attempt to commence an action shall be deemed to be
equivalent to the commencement thereof, within the meaning of this
chapter, when the party diligently endeavors to procure service;
but such attempt must be followed by service within sixty
days."
The court held that the trial court did not lose jurisdiction
because service by publication was not commenced, personal service
not being had, until some seven months after suit was brought and
an order of attachment was issued and levied. The court said:
"It will be observed that the restrictive words 'within the
meaning of this chapter' confine the operation of the section to
matters concerning the limitations of actions. It seems to us that
the legislative intent was to prevent parties from indefinitely
prolonging a suspension of the statute by a mere attempt to
sue."
Id., p. 272.
On that authority, we conclude that "at or after its
commencement," as used in § 11819, means the commencement
Page 307 U. S. 308
described in § 11279, not the commencement described in § 11230.
Additional support for this conclusion is found in
Seibert v.
Switzer, 35 Ohio St. 661, on which the Circuit Court of
Appeals relied for the contrary conclusion. There, the validity of
an order of attachment which had been issued and served prior to
the filing of the petition was in issue. At that time, § 11279
(then Civil Code, § 55) was identically the same as at present. §
11819 (then Civil Code, § 191) was, so far as material here,
substantially the same as it is now --
i.e., it allowed
the plaintiff in a civil action for the recovery of money to have
an attachment "at or after the commencement" of the action. § 11820
(then Civil Code, § 192) at that time, as now, provided that the
order of attachment should be made "by e clerk of the court in
which the action is brought." And § 11821 (then Civil Code, § 193)
required in case of attachment, as it does now, a bond by the
"plaintiff" to the "defendant" except in case defendant was a
nonresident or a foreign corporation. The court in
Seibert v.
Switzer, supra, held that the order of attachment was
unauthorized and void, [
Footnote
4] and said:
"No action was, in fact commenced by the filing of a petition,
until some three or four hours after the order of attachment was
served and returned."
"The statute does not authorize an attachment except in an
action, and the clerk of the court has no authority to issue the
order of attachment until an action is brought, and the relation of
plaintiff and defendant is established in the case."
"An action is commenced or brought, within the meaning of
sections 192 and 193, by the filing of a petition and
Page 307 U. S. 309
causing a summons to issue thereon.Code, § 55. . . ."
Id., p. 665.
The
Seibert case and the
Bacher case thus seem
to be wholly consistent. An order of attachment issued prior to the
filing of a petition and issuance of summons is void; an order of
attachment issued after filing of the petition and the issuance of
summons, but prior to the commencement of service by publication,
is valid, though personal service is not had.
In view of these Ohio authorities, we conclude that the
attachments or garnishments secured in the state court were not
premature or void because obtained prior to personal service or
before commencement of service by publication.
See also St.
John v. Parsons, 54 Ohio App. 420, 7 N.E.2d 1013. Those liens,
having been obtained in the state court prior to removal, are
preserved intact after removal. § 646 of the Revised Statutes, 28
U.S.C. § 79. [
Footnote 5]
Third. This brings us to the main issue in the case --
whether a federal District Court has the power to issue an order of
attachment or garnishment in a removed cause if jurisdiction
in
rem has been obtained prior to removal. The Circuit Court of
Appeals relied upon the rule laid down in
Big Vein Coal Co. v.
Read, 229 U. S. 31, that
an attachment may not issue in a federal District Court
Page 307 U. S. 310
where no personal service has been had upon defendant or where
defendant has made no personal appearance. One of the earliest
antecedents of the
Big Vein Coal Co. case,
supra,
was
Toland v.
Sprague, 12 Pet. 300. In that case, a citizen of
Pennsylvania brought suit in the Circuit Court of the United States
for the District of Pennsylvania against a citizen of Massachusetts
who was domiciled abroad. No personal service was had, but an
attachment was levied upon defendant's property in Pennsylvania. §
739 of the Revised Statutes then provided that no civil suit should
be brought in either the circuit or district court against any
inhabitant of the United States by any original process in any
other district than that whereof he was an inhabitant or in which
he was found at the time of the serving of the writ. This Court, by
a divided vote, concluded that an attachment could not be issued
except as a part of, or together with, process served upon
defendant personally. And, in
Ex parte Railway Co.,
103 U. S. 794,
this Court concluded that, since the defendant was an inhabitant of
a state outside the jurisdiction of the federal court and was not
found or served with process in that jurisdiction, no attachment
could issue from that court against his property. It was on the
basis of those two precedents that this Court later made its
decision in
Big Vein Coal Company of West Virginia v. Read,
supra. In that case, plaintiff instituted suit in the federal
court. A summons was issued and returned not found. Thereafter, an
order of attachment was issued. It was held that, unless
jurisdiction
in personam is obtained over the defendant,
his estate may not be attached in the federal court, an attachment
being but "an incident to a suit," and not a means of acquiring
jurisdiction.
Id., p.
229 U. S. 38.
This conclusion was reached in spite of the fact that § 739 had
been changed since
Ex parte Railway Co., supra, by
addition of a diversity of citizenship clause permitting suit "in
the district of the residence of either the defendant or
plaintiff,"
Page 307 U. S. 311
and in spite of § 915 of the Revised Statutes (28 U.S.C. § 726),
discussed hereafter. Nevertheless, this Court held that, since
Congress had not explicitly provided for service by publication in
such cases, attachment could be obtained only in cases where
service was adequate for a judgment
in personam.
The argument for extension or application of the rule followed
from
Toland v. Sprague, to
Big Vein Coal Co. v. Read,
supra, to cases such as the instant one loses its
persuasiveness. Ingrained in those decisions is the feeling that it
would be unjust for a person to have his rights passed upon in the
absence of the notice afforded by personal service, so that he
might appear and defend himself. That philosophy was perhaps best
expressed by Mr. Justice Miller, sitting in circuit, in
Nazro
v. Cragin, 3 Dill. 474, 476, where he said, in 1873, that a
contrary doctrine would
"compel citizens of the Pacific coast to go to New York to
defend their property which happened to be there and would give the
great central cities vast power."
But that viewpoint had not been expressed by the Congress in §
646. That section gave validity in the federal court to attachments
obtained in the state court prior to removal, by its provision that
any attachment in the state court it "shall hold the goods or
estate so attached" to answer the final judgment or decree. And
this Court has solicitously protected attachments obtained prior to
removal, even though jurisdiction
in rem had not been
perfected in the state court by service by publication.
Clark
v. Wells, 203 U. S. 164. So,
to a considerable degree, this Court, in pursuance of the policy of
the Congress as expressed in § 646, has not adhered rigorously to
the philosophy underlying the antecedents of the
Big Vein Coal
Company case. For, most assuredly, a defendant whose property
is attached in a state court prior to removal may not have been
given notice of the kind which personal service would provide,
since the state procedure,
Page 307 U. S. 312
as in this case, commonly permits attachment or garnishment
where only service by publication can be made.
But we need not rely merely on inferences drawn from statutory
construction, since the Congress has provided plaintiffs in federal
courts with procedural remedies available in state courts. § 915 of
the Revised Statutes provides:
"In common law causes in the district courts, the plaintiff
shall be entitled to similar remedies, by attachment or other
process, against the property of the defendant, which were, on June
1, 1872, provided by the laws of the State in which such court is
held for the courts thereof, and such district courts may, from
time to time, by general rules, adopt such State laws as may be in
force in the States where they are held in relation to attachments
and other process. Similar preliminary affidavits or proofs, and
similar security, as required by such State laws, shall be first
furnished by the party seeking such attachment or other
remedy."
This section, when read with § 646, indicates to us that, where
jurisdiction
in rem has been acquired prior to removal,
plaintiff may obtain in the federal court after removal such orders
of attachment or garnishment as would have been available to him
had he been permitted to remain in the state court. Such
interpretation merely makes it possible for a lien obtained in a
state court prior to removal to be extended by the federal court to
other property of the same defendant. It introduces no new element
in the statutory scheme, for, as we have said, the lien which § 646
protects may often have been obtained without personal service. The
policy which recognizes the validity of a lien preserved by virtue
of § 646, though personal service is lacking, permits extension of
that lien by a federal District Court under like circumstances to
other property of the same defendant by reason of § 915.
Page 307 U. S. 313
This holding can be brought within the rule of the
Big Vein
Coal Company case,
supra, if that decision is
narrowly limited. For, in one sense, it can be said that attachment
or garnishment is here used only as an "auxiliary remedy."
Id., p.
229 U. S. 37.
The garnishment effected under the affidavit of February 17, 1936,
if valid under Ohio law, would merely extend the proceedings
in
rem to reach other property of the same defendant.
Accordingly, if that extension is permissible under Section 915, it
is not defective merely because jurisdiction
in personam
is absent. Whether or not such extension is permissible is a matter
of state law on which we do not pass. Since the case will be
remanded, that question and other questions raised by the
respondent can be more appropriately disposed of by the District
Court.
The judgment of the Circuit Court of Appeals is reversed, and
the case is remanded to the District Court for further proceedings
in conformity with this opinion.
Judgment reversed.
[
Footnote 1]
Paris E. Singer was also named a defendant in the original
petition, but died pending the action. Since subsequent proceedings
were continued against respondent alone, the cause is treated as if
Devon Syndicate, Limited, were the sole defendant.
[
Footnote 2]
There is Ohio authority for the view that § 11532 of the Ohio
General Code, under which the notary's disqualification is
asserted, was intended only to define and regulate the taking of
affidavits to be used as testimony in a judicial proceeding.
City Commission of City of Gallipolis v. State, 36 Ohio
App. 258, 173 N.E. 36. On the other hand,
Leavitt & Milroy
Co. v. Rosenberg Bros. & Co., 83 Ohio St. 230, 93 N.E.
904, squarely held that an attachment was defective because the
affidavit was made before a notary who was the attorney for the
plaintiff in violation of § 11532 -- then § 5271, Rev.Stat. And
though that case, so far as appears, has never been overruled, its
holding and § 11532 were nevertheless before the court in
Evans
v.Lawyer, 123 Ohio St. 62, 173 N.E. 735. There, the Court
referred to certain sections of the General Code (including §
11532) which relate to execution of affidavits and said
"The sections of the Code referred to relate to the mode of
taking testimony, and are found under part third, title IV,
division III, relating to procedure in common pleas court, in
chapter 3 in regard to evidence. We think these sections of the
Code relate to affidavits to be used in the sense of evidence."
Id., p. 66. Though we are not justified on these
authorities in concluding that the prohibitions contained in §
11532 are inapplicable to notaries before whom affidavits in
attachment and garnishment are taken, nevertheless they lend
support to the view that, in considering whether or not a notary is
"otherwise interested" in the event of the action within the
meaning of the section, it is appropriate to give some weight to
the function which the affidavit in question is to perform in the
absence of a contrary ruling by the Ohio courts.
[
Footnote 3]
Another reason urged by respondent for the invalidity of the
affidavits in question is that the notary was disqualified by § 121
of the Ohio General Code which provides:
"No banker, broker, cashier, director, teller, or clerk of a
bank, banker or broker, or other person holding an official
relation to a bank, banker, or broker, shall be competent to act as
notary public in any matter in which such bank, banker, or broker
is interested."
Respondent claims that the corporation of which petitioner was
an officer and by which the notary was employed, as well as the
predecessor partnership, was a municipal bond broker; that
petitioner, being an officer of the corporation, was himself a
broker, and that therefore the notary was a "clerk of" or "other
person holding an official relation to" a "broker." Suffice it to
note (1) that the notary was not in the employ of petitioner, and
(2) that neither the corporation nor its predecessor partnership
appears to be "interested" in the action. As alleged, the action
seems to be personal to petitioner.
[
Footnote 4]
It should also be noted that § 11230 (Civil Code, § 20) was
substantially the same then as now. Though that section provided
that, "within the meaning of this title," an action, where service
by publication was proper, should "be deemed commenced at the date
of the first publication," the court determined the date of
commencement by § 11279 without mentioning § 11230
[
Footnote 5]
Sec. 646 provides:
"When any suit shall be removed from a State court to a district
court of the United States, any attachment or sequestration of the
goods or estate of the defendant had in such suit in the State
court shall hold the goods or estate so attached or sequestered to
answer the final judgment or decree in the same manner as by law
they would have been held to answer final judgment or decree had it
been rendered by the court in which said suit was commenced. All
bonds, undertakings, or security given by either party in such suit
prior to its removal shall remain valid and effectual
notwithstanding said removal, and all injunctions, orders, and
other proceedings had in such suit prior to its removal shall
remain in full force and effect until dissolved or modified by the
court to which such suit shall be removed."