1. A mandamus cannot be used to perform the office of an appeal
or a writ of error.
2. Where a suit was brought in the circuit court by assignees in
bankruptcy, praying that a transfer of personal property by the
bankrupt to A. be decreed to be fraudulent, that their title
thereto be declared to be perfect, and that A. be enjoined from
prosecuting an action therefor then pending in a state court, and
the circuit court, after due notice, awarded a preliminary
injunction, and an order is asked here for a mandamus commanding
the judge who granted the injunction to set it aside,
held
that the circuit court having jurisdiction of the suit, an error,
if one was committed, can only be reviewed here after a final
decree shall have been passed in that court.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Certain creditors of Scott & Feibish, of Detroit, instituted
proceedings in bankruptcy, March 14, 1878, against the debtors in
the District Court of the United states for the Eastern District of
Michigan, and at the same time obtained a provisional order for the
seizure of certain goods which, it was alleged, had been disposed
of in fraud of the bankrupt law. This order was placed in the hands
of Salmon S. Matthews, marshal of the district, and he, on the 29th
of March, took into his possession, as the property of the
bankrupts, the goods claimed by Schwab, the petitioner herein. On
the 13th of April, Scott & Feibish were in due form adjudicated
bankrupts.
April 27, Schwab sued Matthews, the marshal, and Mabley,
Michaels, Rothschild, and Hayes, four of the creditors of Scott
& Feibish, in the Superior Court of the City of Detroit, for
the value of the goods seized. May 6, Joseph L. Hudson was duly
elected and appointed assignee in bankruptcy of Scott &
Feibish, and the goods in question were thereupon turned over to
him by the marshal. Since then the goods have been sold by the
Page 98 U. S. 241
order of the bankrupt court, and the proceeds of sale remain in
the hands of the assignee to be applied as part of the estate of
the bankrupts, if it shall appear that the title to the goods was
in the assignee at the time of the sale.
October 5, Hudson, the assignee, Matthews, the marshal, and the
four creditors, defendants in the suit in the state court, filed a
bill in equity against Schwab in the circuit court for the Eastern
District of Michigan, wherein they pray that the sale and transfer
of the goods to Schwab
"may be set aside and held for naught, and decreed to be in
violation of the Bankrupt Act, and that said goods and chattels may
be decreed to be a part of the estate of Scott & Feibish, and
that the title of said Joseph L. Hudson, said assignee, to said
goods, or to the funds arising therefrom, may be quieted and
decreed to be perfect."
It is also further prayed that Schwab and his attorneys be
enjoined
"from further prosecution of said suit so pending in the
Superior Court of Detroit, or from the prosecution of any other or
further suit in regard to the seizure of said goods, save in this
[the circuit] court or in the bankruptcy court."
A preliminary injunction, after notice, was granted by the judge
of the District Court for the Eastern District of Michigan,
November 12, and Schwab now asks for an order on the judge to show
cause here why a mandamus should not issue commanding and enjoining
him to vacate and set aside such injunction.
Mandamus cannot be used to perform the office of an appeal or a
writ of error.
Ex parte Loring, 94 U. S.
418;
Ex parte Flippin, 94 U.
S. 350. The circuit court had jurisdiction of the action
and of the parties, for the purpose of trying the title of the
assignee to the goods. The injunction was granted in the course of
the administration of the cause. Injunctions may be granted by the
courts of the United states to stay proceedings in the courts of a
state, "in cases where such injunction may be authorized by any law
relating to proceedings in bankruptcy." Rev.Stat., sec. 720. When
the application was made for the allowance of the injunction, it
became the duty of the court to determine whether the case was one
in which that power could be exercised. The question arose in the
regular progress of the cause, and, if decided wrong, an error
Page 98 U. S. 242
was committed, which, like other errors, may be corrected on
appeal after final decree below.
The case is entirely different from what it would have been if
the only object of the suit had been to enjoin Schwab from
proceeding in the state court. There the question would have been
as to the jurisdiction of the circuit court over the cause. But
here is clearly jurisdiction of the cause. The assignee in
bankruptcy had the undoubted right to sue Schwab in the circuit
court to settle the title to the goods or the fund arising from
their sale. The injunction was a mere incident to the principal
relief he asked. Even if not granted, the suit could go on.
Being satisfied, by the petitioner's own showing, that the
error, if any, in the court below cannot be corrected by mandamus,
we deny the motion for an order to show cause.
Motion denied.