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Slaughter-House Cases the Butchers' Benevolent Association of New Orleans v. Crescent City Live

THESE were motions made at the close of this term (December, 1869), in behalf of several plaintiffs in error, to enforce the supersedeas on writs of error which had issued in five several cases to the Supreme Court of the State of Louisiana, returnable to the term now coming (December, 1870), of this court.

The case was this:

By the 25th section of the Judiciary Act of 1789, this court has power, on writ of error, to re-examine a final judgment or decree in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, 'where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution of the United States, and the decision is in favor of such their validity.' By this same section the writ of error to such Supreme Court of the State 'shall have the same effect as if the judgment or decree complained of had been rendered or passed by a Circuit Court.'

By a prior section of the act (the 22d) it is enacted that 'final judgments and decrees in civil actions and suits in equity in Circuit Courts. . . may be re-examined, and reversed or affirmed in the Supreme Court, a citation to the adverse party being in such case signed by a judge of such Circuit Court, or justice of the Supreme Court, and the adverse party having at least thirty days' notice.' The same section proceeds:

'And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of. And every justice or judge signing a citation on any writ of error, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect,' &c.

A following section (the 23d), declaring the effect of a writ of error to a judgment in a Circuit Court, says:

'That a writ of error, as aforesaid, shall be a supersedeas and stay execution in cases only where the writ is served, by a copy thereof being lodged for the adverse party in the clerk's office, within ten days after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days execution shall not issue in any case where a writ of error may be a supersedeas.'

The same act of 1789 provides, by its fourteenth section, that this court 'shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statutes, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law.'

An act, however, of March 2d, 1793, entitled 'An act in addition to the act' above quoted, of 1789, thus declares:

'Writs of ne exeat and injunction may be granted by any judge of the Supreme Court in cases where they might be granted by the Supreme or a Circuit Court; but no writ of ne exeat shall be granted unless a suit in equity be commenced and satisfactory proof made that the defendant designs quickly to depart from the United States; nor shall a writ of injunction be granted to stay proceedings in any court of a State.'

These statutory enactments being in force, the legislature of Louisiana, A.D. 1869, in professed exercise of its power to protect the health, promote the cleanliness, and regulate the police of the city of New Orleans, passed an act by which it ordered all animals imported for consumption in the city to be landed at certain places, and all intended for food to be slaughtered there, and for the purpose of executing this law conferred on seventeen persons, as a company, the exclusive right to maintain landings for cattle and to erect slaughter-houses, &c., chartering them under the name of The Crescent City Live-stock Landing and Slaughter-house Company.

The plaintiffs in error, being different individuals and companies, undertaking or continuing to maintain other landings and slaughtering houses, in opposition to those of the chartered company, that company filed petitions in certain of the District Courts of the State asserting their right to the monopoly conferred by the act, and obtained preliminary injunctions against these different parties and associations prohibiting the use of the landings and the exercise of the business of slaughtering as infringing upon the exclusive right which the new company claimed under the act. These injunctions, upon the hearing of exceptions and answers, were perpetuated.

In other of the District Courts of the State, those who asserted that the act was a violation of their rights also filed petitions against the company, upon which preliminary injunctions were perpetuated in favor of the petitioners.

The ground maintained against the act was, that it violated the fourteenth amendment of the Constitution of the United States, which declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'

These conflicting decrees in the District Courts were all taken by what are known in Louisiana as 'suspensive appeals' to the Supreme Court of the State, where judgment in all was given in favor of the new company, which asserted the validity of the act. And to these judgments of the Supreme Court of the State writs of error were taken from this court under the already-mentioned 25th section of the Judiciary Act; the writs of error, service citation, bond, &c., being all regularly taken and made, and filed within the ten days prescribed by the 23d section, which prevents the writ of error from operating as a supersedeas and stay of execution unless these be taken within that time.

Before the judgments here complained of were rendered in the Supreme Court of Louisiana, the legislature of that State created a new court, known as the Eighth District Court of New Orleans, giving to it exclusive original jurisdiction in cases of injunction, and authorizing the removal of such cases into it from other courts.

The parties denying the rights of the new company to the exclusive privileges granted to it by the act of 1869, being, after the writ of error from this court to the Supreme Court of the State, about to proceed to the landing and killing of cattle, &c., in disregard of the injunction, which, as they asserted, was superseded by the writ of error taken from this court, the attorney-general of Louisiana, now intervening on what till now had been a litigation between citizens in a question of private right, moved in this new court in one of the cases here the subject of writ of error to enforce the judgment rendered on appeal to the Supreme Court of the State making perpetual the injunction originally granted by the court from which the cause was removed; but the new court refused to grant this motion on the ground that the writ of error sued out to this court (the Supreme Court of the United States) operated as a supersedeas under the 23d section of the Judiciary Act. But it did enforce the preliminary injunctions granted by those District Courts which thought that injunctions ought to be granted; and, in addition, upon a petition in proceedings of an original character, instituted by the new corporation, and afterwards adopted by the attorney-general as representing the State, to which proceedings none of the plaintiffs in error in these present cases were parties, but which were directed against the corporation of New Orleans and the board of metropolitan police there, the new court ordered the city and the board of police to prevent all persons except the new company from landing or slaughtering cattle or selling animal meat for food.

In this state of things the plaintiffs in error in the five several cases (here designated generally and by their popular name as 'The Slaughter-house Cases,' but of which the specific names are also given at the beginning of the case, on p. 273) filed petitions in this court setting forth the general history of things below, the fact that they had obtained writs of error, &c., within ten days, so as to remove the causes to this court and to be a supersedeas to any execution; that after this had been done the defendants in error, to defeat the operation of the writs and in disobedience of the supersedeas, applied to the Eighth District Court for orders of the sort already described to prevent all persons (except the defendants) from landing, keeping, or slaughtering any cattle; that the orders were granted as asked for, and had been executed so as to prevent the plaintiffs in error from having any benefit of the supersedeas to which they were entitled, and so far as the orders were on the original proceedings had in effect turned the corporation of New Orleans and the metropolitan board of police into sheriffs to enforce the judgments of courts which had been superseded by the writs of error. All of which would appear, the petitioners asserted, from the record of the proceedings in the Eighth District Court, and the affidavits on file with the same, submitted with the petition.

The motion in this court therefore was for an order of injunction and supersedeas to command the defendants in error and the city of New Orleans, the metropolitan board of police, in no manner to hinder or to prevent the plaintiffs in error from landing or slaughtering animals, or of having, keeping, or establishing landings or slaughter-houses, or for vending animal food in the markets of New Orleans, as fully as they could before the passage of the act of 1869, incorporating the defendants, or as the defendants were allowed to do by the said act, and that a suitable order might be made to the said Eighth District Court to prohibit it from further proceeding in the premises.

Messrs. J. A. Campbell, P. Phillips, and J. Q. A. Fellows, in support of the motion:

In England the allowance of the writ of error suspends all further proceedings in a cause, and on motion such proceedings will be set aside. The service of notice of the allowance is only material to bring the party into contempt if he proceed subsequently. In one case it was held to be a contempt in the attorney in taking out execution against bail to the action, though this was merely collateral to the judgment on which the pending writ of error operated.

The effect of an appeal, though taken from a mere interlocutory order, was originally maintained by the House of Lords to suspend all proceedings whatever until the decision of the Lords on the appeal. In 1772 this was so far modified as to allow the appeal to be a supersedeas only as to the matter appealed from; and the Chancellor was permitted, during the recess of Parliament, to take such proceedings pending the appeal as were requisite for the preservation of the rights of the parties. In 1807, the rule, as it now exists, was adopted, to wit, that the appeal did not operate, of itself, a suspension of any proceedings. But this suspension was allowed, in whole or in part, by the appellate court, or by the Chancellor, according to the exigency of the case.

The Judiciary Act of 1789 found the rule, as established in England in 1772, in full operation, and has dealt with the whole subject. The writ may be sued out at any time within five years from the rendering of the judgment or decree; but when taken within ten days thereafter, the statute declares that it 'shall be a supersedeas and stay execution.'

The supersedeas thus given will be protected and enforced by this court by virtue of its inherent powers as an appellate tribunal. The motion to quash an execution issued after the allowance and filing of the writ of error might be made in the court below. But it is equally competent for this court, in the furtherance of justice, to do the same thing. The supersedeas order is directed not only to the parties and the executive officers, but also to the judges of the court.

'It is a well-settled rule,' say the Supreme Court of Louisiana, 'that after a cause is sent to this court by regular appeal, the court of the first instance can no longer take any steps in the case except such as may be necessary to transmit the record to the court above.'

Decisions in Louisiana demonstrate that the cases now before this court were proper cases for suspensive appeals. In one case the petitioner, asserting himself to be chief of police, in another to be sheriff, filed his petition for injunction against the incumbents. The petitions were granted, and orders restraining the parties incumbent from a further performance of official duties, and for delivery up of books, &c., pertaining to their offices, were made a part of the injunctive orders. Suspensive appeals were prayed for and denied in the court below, but on petition for mandamus the Supreme Court of the State made the rule peremptory, holding that the right to such an appeal had been constantly recognized; and a careful examination of the Code of Practice shows that the right to a suspensive appeal is the rule, and that it stays proceedings, save in cases specially excepted.

It would seem to be a mere conceit (though this was the idea of the Court of the Eighth District), that the matter appealed from was the perpetuated injunction, and that the appeal did not reach the preliminary injunction. Of what consequence to the defendant is his suspensive appeal, what rights does it preserve, if this be its true operation? The ex parte order for injunction is subsequently declared to be perpetuated. It is one and the same injunction. The right of the defendant, under the suspensive appeal, is the right not to be disturbed until he can get the judgment of the appellate court; and if, notwithstanding the appeal, he can be ousted, of what consequence is it that this is done on the preliminary, and not on the final order? If the appeal does not protect his possession, then it is not suspensive.

In a judicial sense the judgment below was not affirmed, for this was the question which the law had transferred for decision to this court. In other words, the case stood as if the Act of 1789 had brought the case up from the decree of the District Court directly.

The Eighth District Court, of whose action we complain, admits that the judgment of the Supreme Court was superseded, and refused a motion on that ground to make that judgment executory, and yet gave execution on the preliminary order on what we have attempted to show was an unfounded distinction. If, therefore, the writ of error had been directly addressed to the District Court, and pending the cause in this court the court of first instance had proceeded to execute the injunction, we cannot doubt that the motion to set aside such proceedings would be granted. It would seem to follow that the same motion must be granted when the Supreme Court is intermediary.

Messrs. Black, Durant, Carpenter, and Allen, contra:

1. Writs of error to reverse judgments at law rest on a different basis from writs of error brought for the purpose of obtaining a revision of a case by the Supreme Court of the United States. Supersedeas is a law term, and has no application to a chancery proceeding.

2. In the English chancery practice the question whether an appeal shall stay proceedings rests much in the discretion of the tribunal from which the appeal is taken; and it is common to make special application to that tribunal, either to stay further proceedings or to pass an order that proceedings shall not be stayed. Such was the course in the recent English case, Barrs v. Fewkes. The application was made to the court appealed from. The general rule is, that an appeal will not stay proceedings.

3. Under the practice by which causes are removed from State courts to this court, the removal is in the nature of an appeal. It is a continuation of the same litigation, not a new suit, as a writ of error at common law. The mode of removal is only a matter of form. The substance of the matter is, that the cause is brought before a supervising tribunal for revision; and the jurisdiction of the United States Court is in its nature appellate. The writ of error, therefore, is only a new stage in the cause; and accordingly an injunction should continue in force until the determination upon the writ of error, which is the ultimate determination of the original suit.

4. It is impossible to suppose that there should not be authority in a court of equity, by a decree, to hold matters in a certain fixed position until the ultimate determination of the cause. In many cases, where, if the injunction is suspended while the appeal or writ of error is pending, all the mischief will be done which is sought to be prevented: as, ex. gr., in an injunction to stay waste by cutting down trees, the trees will be cut; in an injunction to restrain a nuisance affecting health, to abate and suppress a source of disease, disease and death will prevail; in an injunction to restrain the marriage of a ward, an irretrievable mischief may occur at once; in an injunction to restrain the publication of private letters, or any libellous matter, or to restrain the disclosure of secrets, the knowledge of which was gained in the course of a confidential employment, or anything else, the doing of which consists of a single act, if the injunction is suspended, then the whole equitable remedy is in vain.

5. So in cases at law, suppose articles have been seized on a search warrant; stolen goods, counterfeit coin, forged bank notes, implements for counterfeiting, which State laws may authorize to be seized and held for condemnation and forfeiture; and a restoration to the owner (in case of stolen goods), or a condemnation and forfeiture and destruction of them, have been decreed. If a writ of error is sued out, that supersedes the final order of restoration to the owner, or condemnation; but shall the articles therefore be given up to the person who had the guilty possession of them, or shall they still be held in the custody of the law?

6. It must be the case that there is power in a court of equity, and also, when necessary, in a court of law, to pass orders which shall have the effect to hold things as they are, and prevent any subsequent change in the situation of things which shall be disastrous to the plaintiff, or to the public, and fatal to the relief which is sought. The law of Louisiana is very explicit in this regard.

7. What power, then, has the Supreme Court of the United States in the premises?

It has power to take such measures as may be necessary to preserve the condition of things which existed just prior to the passing of the final decree in the court below. The supersedeas attaches to so much of the final sentence as determines the ultimate rights of the party.

8. Only final judgments and decrees can be re-examined and reversed on writs of error. The cases are numerous where this court has refused to entertain any application to deal with preliminary decrees. A striking case, in some respects analogous to the present, was that of Gibbons v. Ogden.

9. The 23d section of the Judiciary Act of 1789 recognizes that preliminary injunctions shall stand. The statute provides that a writ of error shall be 'a supersedeas any stay of execution, in case,' &c. Executions are not to issue; that is, precepts to enforce the final judgment of the State courts are not to issue. It is only the final and ultimate rights, and not the incidental rights of parties, that writs of error are designed to vindicate.

10. The present motions are premature; for the writs of error are not returnable till the first day of next term.

11. The Act of 1793 forbids the granting of injunctions 'to stay proceedings in any court of a State.'

Reply: 1. Delaying a motion for a supersedeas till the return day of the writ of error would frequently render the application fruitless. Such is not the practice.

2. The power given to this court by the Act of 1789 to issue all writs necessary for its jurisdiction is not taken away by the Act of 1793, which limits the writ of ne exeat, and restrains the issuing of an injunction to a State court to stay proceedings. There are no repealing words in this statute, and repeals by implication are not favored. The title of the act shows that no repeal was intended.

Mr. Justice CLIFFORD stated the case in detail, and delivered the opinion of the court.


text: Talk:Slaughter-House Cases the Butchers' Benevolent Association of New Orleans v. Crescent City Live

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Slaughter-House Cases the Butchers' Benevolent Association of New Orleans v. Crescent City Live/Opinion of the Court

All persons and corporations, except the Crescent City Live-stock Landing and Slaughter-house Company, are prohibited, by an act passed by the legislature of the State of Louisiana, to land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landings, yards, pens, slaughter-houses, or abattoirs at any point or place within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard, or at any place on the east bank of the river within the corporate limits of the city, or at any point on the west bank of the same above the railroad depot therein mentioned and designated.

Said act was passed on the eighth day of March, 1869, and is entitled An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate 'the Crescent City Live-stock Landing and Slaughter-house Company.' Though approved on the day mentioned, still the act did not go into operation till the first day of June following, but it appearing that the company created and organized under the act intended to enforce the prohibition, the plaintiffs in the suit first mentioned, on the twenty-sixth of May of that year, filed a petition or bill of complaint in the Sixth District Court of New Orleans against that company, alleging that for more than thirty years past there had existed in the parish of Orleans and the adjacent parishes the lawful trade of butchering domestic animals to supply with meat the markets of the city and the adjacent parishes, and that the regular pursuit of that trade involved the necessity of collecting, feeding, and sheltering such animals before they were slaughtered, and of preparing and preserving their meat for use or sale for food, and their hides, tallow, and other valuable parts of the animals for the market; that a thousand persons throughout that period have been engaged in that trade without interruption and unmolested prior to the organization of that company by any ordinance, regulation, or enactment from any public authority; that they, the petitioners, are duly incorporated under a law of the State, and that for more than two years they have been and are in the lawful exercise of that trade and employment, and that they have constructed and erected for that purpose, and now hold within those parishes, places for landing cattle and for sheltering the same, and slaughter-houses for butchering the animals for market, and have secured stalls and such other privileges in the market-places as are necessary and convenient to the prosecution of the business; that the respondents, though they must well know that the act is in violation of the Constitution of the United States, openly declare that it is their intention to executed its provisions and to compel the complainants to abandon the objects of their incorporation, and to destroy the value of their investments, and render it necessary for them to relinquish their lawful pursuit and the prosecution of their legitimate business.

Wherefore they pray that the respondents may be enjoined from any such interference with the petitioners, and from interfering, directly or indirectly, by suit or otherwise, with their customers in purchasing, slaughtering, or butchering animals of any kind used for meat, during the pendency of the suit, and also for process, and that they, the complainants, may have judgment against the respondents in damages for the sum of ten thousand dollars.

On the same day the respondents in that suit instituted in the Fifth District Court of New Orleans a counter suit against the complainants in the suit commenced against them in the Sixth District Court of the same municipality. They allege in their petition that 'the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business in that city and its environs in vested in their company, as is fully set forth in the act of their incorporation; that the corporation named in their petition, as respondents, are about to land, shelter, and protect cattle, &c., intended for slaughter, and to conduct and carry on the live-stock landing and slaughter-house business within the limits of the city as prohibited by law and in violation of their exclusive rights and privileges. Wherefore they pray that the respondents, the complainants in the suit pending in the Sixth District Court, may be enjoined and prohibited from landing, stabling, and sheltering cattle, &c., and other animals destined for sale and slaughter in that city, and from conducting and carrying on the live-stock landing and slaughter-house business within the limits of the parishes described in their charter, and from molesting and interfering with the petitioners in the exercise and enjoyment of their exclusive rights and privileges; and they also claim damages in the sum of four thousand dollars, and for general relief.'

Judgment in the first suit was rendered for the petitioners, and it was ordered that the injunction previously issued in the case against the respondents should be made perpetual. Pursuant to the suggestion of the respondents in that case, that there was error to their prejudice in the final judgment of the Sixth District Court, it was ordered 'that a suspensive appeal be granted herein to the defendants, returnable to the Supreme Court of the State.'

Hearing was also had in the suit commenced in the Fifth District Court by the Crescent City Live-stock Landing and Slaughter-house Company against The Butchers' Benevolent Association of New Orleans, and it was ordered, adjudged, and decreed in that case that there by judgment in favor of the petitioners, and that the corporation respondents, their president and members, be forever enjoined and prohibited, as prayed in the petition.

Exceptions having been filed to certain rulings of the court, it was also ordered, on motion of the respondents, that they, the respondents, be allowed a suspensive appeal to the Supreme Court of the State, as in the preceding case.

Separate suits were also commenced in the Seventh District Court of the city against the Crescent City Live-stock Landing and Slaughter-house Company by Hotair Imbau et al., and by the Live-stock Dealers' and Butchers' Association of New Orleans, as appears by the transcripts filed here in those cases. Injunctions were prayed and granted against the respondents in both of those cases, and they, the respondents, were allowed suspensive appeals to the Supreme Court of the State from the respective judgments.

Suit was also commenced in behalf of the State by the Attorney-General against Paul Esteben et al., in which it is alleged that they have, without authority of law, formed themselves into a corporation by the name of the Live-stock Dealers' and Butchers' Association of New Orleans; that they, as such corporation, are about to lease or purchase a certain tract of land partly in the city and partly in the parish of St. Bernard, and that they are about to commence the erection of buildings and structures thereon for the purpose of collecting, landing, and sheltering beef-cattle designed for food, to be sold in the parishes of Orleans, Jefferson, and St. Bernard, contrary to the act of the General Assembly of the State. Wherefore the petitioner prays that a writ of injunction may issue restraining and enjoining the respondents from using that tract of land for the purpose set forth in the petition and from slaughtering any beef-cattle or any other animals intended to be sold for food in those parishes. Final judgment in the case was rendered in favor of the State, and it was also ordered, adjudged, and decreed that the respondents be forever enjoined and restrained, as prayed by the petition. Attempt was made by the respondents to secure a rehearing, but the motion was denied, and on their petition it was ordered that they be allowed a suspensive appeal to the Supreme Court of the State, as in the preceding cases.

These several appeals, together with one other which it is unnecessary to describe, were duly entered in the Supreme Court of the State, and were, by the written agreement of the parties, submitted for decision at the same time. They were submitted on the twenty-eighth of January, 1870, and the opinion of the appellate court was delivered on the eleventh of April following. Pursuant to that opinion the judgment of the Sixth District Court, as rendered in the first case, was reversed, and the directions of the Supreme Court of the State were that the injunction granted by the subordinate court should be dissolved, and that the demand of the petitioners should be rejected with costs in both courts. They also rendered a judgment of reversal in the same form and with the same directions in the third and fourth cases, being the two appeals from the judgments rendered in the Seventh District Court. Judgments of affirmance were also rendered on the same day in the second and fifth cases, in the order herein adopted, with costs of appeal.

Where the decision in the court below sustained the pretensions of the Crescent City Live-stock Landing and Slaughter-house Company the judgment of the subordinate court was affirmed, but the judgment of the subordinate court was reversed in each case where the decision of the subordinate court was adverse to those pretensions, and the injunctions in those cases were dissolved.

Petitions for rehearing were filed by the losing parties, on the twenty-sixth of April, 1870, and on the ninth of May following an entry was made in each case, that the petition for rehearing was refused. Writs of error to the State court were subsequently prayed by the same parties, and on the thirteenth of May last the writs of error were allowed by the Associate Justice of this court allotted to that circuit, and they were duly filed on the sixteenth day of the same month, as appears of record.

Filed, as the writs of error were, within ten days from the date of the entry refusing the petition for rehearing, it is claimed by the plaintiffs that the several writs of error operate as a supersedeas and stay execution, under the twenty-third section of the Judiciary Act. Doubts were at one time entertained upon that subject, but since the decision in the case of Brockett v. Brockett, the question must be considered as settled, in accordance with the views of the plaintiff.

Sufficient bonds were given in each of these cases, which is necessary in every case, in order that the appeal or writ of error may operate as a supersedeas and stay execution on judgments removed into this court for re-examination. What is necessary is that the bond shall be sufficient, and when it is desired that the appeal or writ of error shall operate as a supersedeas the bond must be given within ten days from the date of the decree or judgment.

Suppose the writs of error were seasonably sued out and that they operate in each case as a supersedeas and stay execution, as provided in the twenty-third section of the Judiciary Act, still the court is of the opinion that the several motions under consideration must be denied upon other grounds, and for reasons which are entirely satisfactory.

Controversies determined in a State court which are subject to re-examination in this court, are such, and such only as involve some one or more of the questions enumerated and described in the twenty-fifth section of the Judiciary Act, and which have passed to final judgment or decree in the highest court of law or equity of a State in which a decision in the suit could be had, as provided by the constitution and laws of the State. Appeals were taken in the cases before the court from the respective District Courts, where they were commenced, to the Supreme Court of that State before the writs of error granted by this court were sued out, and the decrees or judgments brought here for re-examination are the final decrees or judgments of the Supreme Court of the State in those cases.

Writs of error issued under the twenty-fifth section of the Judiciary Act have the same effect as if the judgments or decrees were rendered in a Circuit Court, and they operate as a supersedeas and stay execution only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, from the date of the judgment or decree.

Such a writ of error is in the nature of a commission by which the judges of one court are authorized to examine a record upon which a judgment or decree was given in another court, and on such examination to reverse or affirm that judgment or decree. When regular in form, and duly served, the writ of error operates upon the record of the court to which it is addressed in the case described in the writ, and it has the effect to remove that record into the court granting the writ of error and to submit it to reexamination, and the twenty-third section of the Judiciary Act provides to the effect that where all the conditions prescribed in that section concur in the case the jurisdiction of the court where the record remained when the writ of error was sued out and served shall be suspended until the cause is determined by or remanded from the appellate tribunal.

Exceptional cases arise where the judgment or decree given on appeal in the highest court of a State is required by the law of the State to be returned to the subordinate court for execution, and in such cases it is held that the writ of error from this court may operate as a supersedeas, if granted and served at any time within ten days from the return entry of the proceedings in the court from which the record was removed, but in all other cases the writ of error must be issued and served within ten days from the date of the judgment or decree, in order that it may operate as a supersedeas and stay execution.

Appeals and writs of error do not become a supersedeas and stay execution in the court where the judgment or decree remains by virtue of any process issued by this court merely as such, but they are constituted such by the act of Congress when the conditions prescribed in the twenty-third section of the Judiciary Act are fulfilled. Where those conditions are complied with the act of Congress operates to suspend the jurisdiction of the court to which the writ of error is addressed, and stay execution in the case pending the writ of error and until the case is determined or remanded.

Power to issue a supersedeas to a judgment rendered in a subordinate court does not exist in this court where the writ of error is not sued out and served within ten days from the date of the judgment, except where the aggrieved party is obliged to sue out a second writ of error in consequence of the neglect of the clerk below to send up the record in season, or where the granting of such a writ is necessary to the exercise of the appellate jurisdiction of the court, as where the subordinate court improperly rejected the sureties to the bond because they were not residents of the district.

Undoubtedly the writs of error in these cases were seasonably sued out and served, and it is equally clear that the parties in whose favor they were granted complied in each case with all the conditions prescribed in the act of Congress as necessary to give the writ effect as a supersedeas and stay execution, as contended by the plaintiffs in the pending motions. Such proceedings operate as a stay of execution, and it is well settled that if the subordinate court, under such circumstances, proceeds to issue final process, it is competent for this court to issue a supersedeas, as an exercise of appellate power, to correct the error.

Doubt upon that subject cannot be entertained where it appears that the court to which the writ of error was directed has made the return of the same to the proper term of the court, pursuant to the commands of the writ, and the same has been duly entered on the calendar. Objection is made, however, that the motions before the court are premature, as the return day of the writ of error is the first day of the next term, but we are of the opinion that the court possesses the power to grant a remedy in such a case even before the return day of the writ of error, where it appears that the court to which it was addressed has made return to the same, and that the plaintiff has filed in the clerk's office a copy of the record duly certified as required by law.

Except in a case of urgent necessity the court, in the exercise of a proper discretion, might well decline to exercise the power before the return day of the writ, but the better opinion, we think, is that the jurisdiction for such a purpose attaches from the time the party in whose favor the writ of error is granted has complied with all the conditions prescribed in the act of Congress to make the writ of error operate as a supersedeas and stay of execution.

Grant all this, still the court is of the opinion that the motions cannot be granted, as it is conceded that nothing has been done by the Supreme Court of the State since the writs of error were served and became a supersedeas, inconsistent with the prohibition contained in the act of Congress which gives the writs of error that effect. Argument upon that topic is unnecessary as the affidavits filed in support of the motions affirm nothing of the kind, nor do the plaintiffs set up any such theory.

Incorporated as the respondents in the motions are by the General Assembly of the State, they claim the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits described and the privileges granted in the act giving them corporate powers. On the other hand, the plaintiffs contend that the act granting them such exclusive privileges is in violation of the Constitution of the United States, and void, and that they, the plaintiffs, have equal right to establish a live-stock landing, and to erect slaughter-houses, and to conduct and carry on that business as if no such special privileges had been granted to the respondents.

Injunctions were obtained by each party against the other in the courts where the suits were commenced, but appeal was taken, in each case, by the losing party, to the Supreme Court of the State, where the injunctions previously granted against the respondents in the motions were dissolved and those previously granted against the plaintiffs were made perpetual. Judgments of reversal on the one side and of affirmance on the other were accordingly rendered by the Supreme Court of the State in the respective causes, as before explained, and it is to those judgments and to that court that the writs of error in question were directed and addressed. Those judgments remained in the Supreme Court of the State when the respective writs of error were sued out and became a supersedeas and stay of execution, and the records show that that court has neither reversed nor modified the judgments, nor any one of them, nor has that court done anything to vary or impair the rights of the parties or to carry the judgments into effect.

Subsequent to the commencement of these several suits, but before the judgments were rendered in the Supreme Court, the General Assembly of the State created another court in that city, called the Eighth District Court, and conferred upon that tribunal the exclusive original jurisdiction of injunction causes, and also made provision in the same act for the removal of such causes from other courts to that jurisdiction.

Supersedeas writs of error having been sued out by the plaintiffs to the respective judgments rendered in the Supreme Court, they claimed that the injunctions against them granted by that court were inoperative, and their theory was and still is that the writs of error had the effect to dissolve or suspend the injunctions granted by the Supreme Court of the State and to restore and render operative the injunctions decreed in the subordinate courts.

Governed by these views, the plaintiffs denied that the respondents could claim to exercise any such exclusive privileges as those described in their charter, and proceeded to make the necessary preparations for carrying on the same business. Opposite views were entertained by the respondent corporation and by the State authorities, and especially by the attorney-general, and for the purpose of testing the question he moved in the Fifth District Court that the fifth case embraced in the motions, as here classified, should be removed into the Eighth District Court, and the motion was granted.

Application was then made by him to the latter court to enforce the judgment rendered on appeal in that case by the Supreme Court of the State, making perpetual the injunction originally granted by the court from which the cause was removed, but the court refused to grant the motion, because, as the court held, the writ of error sued out in the case operated as a supersedeas.

Attempt is not made to call in question the correctness of that decision, but the attorney-general on the same day obtained a rule in that court against all the respondents in that case, except one, to show cause, if any, why they should not be punished for contempt, as having violated the injunction granted in the case before the same was appealed to the Supreme Court of the State. Service was made under the rule and the respondents appeared, and were fully heard, but it appearing that the respondents had acted under the advice of counsel, the court refused to inflict any punishments. Directions, however, were given to the sheriff in the form of an order to enforce the preliminary injunction granted by the Fifth District Court.

Proceedings of an original character were also instituted by the present respondents in the same District Court, in which they prayed that the board of metropolitan police might be enjoined to prevent all persons, except the petitioners in that case, from conducting or carrying on the live-stock landing and slaughter-house business within their chartered limits. Accompanying that petition was an affidavit of merits, and upon that petition and affidavit an injunction was granted as prayed.

Three days later, to wit, on the sixth of June last, the attorney-general intervened for the State in the suit and adopted the petition and prayed that the injunction might be made perpetual. Various motions were made by parties opposed to the proceedings to dissolve or modify the injunction, but they were all overruled and denied by the court. No appeal was taken to the Supreme Court of the State, nor does it appear that any attempt was made by the respondents, in any form, to cause the proceedings to be re-examined in the court of last resort. They regarded it as unnecessary to seek any such revision of the proceedings, as they insist that the legal effect of the writ of error issued from this court to the Supreme Court of the State was to vacate the injunction granted by the latter court and to continue in force the suspensive features of the appeals allowed by the subordinate courts.

Beyond doubt, the appeal in the form granted by the subordinate court operated as a stay of execution, and suspended the jurisdiction of the court to proceed further in the cause until the same should be determined or remanded, but the Supreme Court rendered a final judgment in the case and granted a perpetual injunction.

Whatever conditions were annexed to the appeal in the subordinate court were abrogated by the final judgment of the appellate tribunal, as the appeal was then fully executed. Had no writ of error been granted by this court the plaintiffs, it is presumed, would admit the correctness of that rule, but they insist that the effect of the writ of error, if made a supersedeas, is that it suspends the judgment of the Supreme Court and leaves the judgment of the subordinate court in full operation during the pendency of the writ of error.

Independent of statutory regulations, the term supersedeas has little or no application in equity suits, as the rule is well settled in the English courts that an appeal in chancery does not stop the proceedings under the decree from which the appeal was taken without the special order of the subordinate court.

Proceedings are stayed in the courts of New York by appeal in a chancery suit to the extent that if the party desires to proceed, notwithstanding the appeal on the point from which the appeal was taken, he must make application to the chancellor for leave.

Different rules upon the subject prevail in different jurisdictions, but the act of Congress provides that appeals in the Federal courts shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.

Appeals do not lie from a State court to this court in any case, as the act of Congress gives no such remedy. Rules and regulations prescribed by law of course control and furnish the rule of decision, but it seems to be well settled everywhere, in suits in equity, that an appeal from the decision of the court denying an application for an injunction does not operate as an injunction or stay of the proceedings pending the appeal. Neither does an appeal from an order dissolving an injunction suspend the operation of the order so as to entitle the appellant to stay the proceedings pending the appeal, as matter of right, either in a suit at law or in equity.

Separate examination of the several cases before the court as respects the effect of the writs of error upon the judgments removed into this court, may well be omitted, as the plaintiffs were the losing party in all the appeals from the courts of original jurisdiction to the Supreme Court. They prevailed in three of the suits in the District Courts, but they were defeated in the Supreme Court in all the cases.

Viewed in any light it is clear that a writ of error to a State court cannot have any greater effect than if the judgment or decree had been rendered or passed in a Circuit Court, and it is quite certain that neither an injunction nor a decree dissolving an injunction passed in a Circuit Court is reversed or nullified by an appeal or writ of error before the cause is heard in this court.

Judgments and decrees of the Circuit Court are brought here for re-examination, and so are the judgments and decrees of a State court, and the only effect of the supersedeas is to prevent all further proceedings in the subordinate court except such as are necessary to preserve the rights of the parties.

Reference is also made to the fifth section of the act of the second of March, 1793, as conferring power upon this court to enjoin the proceedings in the Eighth District Court, but the conclusive answer to that suggestion is that there is no appellate relation between a subordinate State court and the Supreme Court of the United States, and where no such relation is established by law the prohibition of that section-nor shall a writ of injunction be granted to stay proceedings in any court of a State applies to the Supreme Court as well as to the Circuit Court.

Final judgments or decrees in any suit in the highest court of law or equity of a State, in which a decision in the suit could be had, may be removed here for re-examination if they involve some one or more of the questions specified in the section conferring the jurisdiction, and otherwise come within the rules which regulate that jurisdiction. Appeals lie, it is conceded, from the District Courts of that State to the Supreme Court, as fully appears also from the records in these suits, which shows to a demonstration that this court possesses no power to grant any relief to the plaintiffs under the act of Congress on which these motions are founded.

MOTIONS DENIED.

Mr. Justice BRADLEY, dissenting.

I dissent, with some diffidence, from the opinion of the court, on the following grounds:

1st. That notwithstanding the act of Congress declares that a writ of error shall be a supersedeas if certain conditions are performed, the judgment of the court has the effect of leaving many classes of decrees and judgments in equity, though appealed from, entirely effective and operative between the parties, whereas the writ of error ought to suspend the effect and operation thereof until the case is heard in this court.

2d. That the judgment of this court will have the effect to allow subordinate State courts to evade the supersedeas of a writ of error in all cases where the court of last resort remits the record to them for execution. The judgment of this court disclaims all jurisdiction over the acts of the subordinate State courts, and thereby, in my judgment, surrenders a very important power necessary to the effective support of its appellate jurisdiction.

3d. That the judgment of the court remits the practice on this subject substantially back to the practice of the English courts of equity, in which it is conceded that an appeal does not suspend proceedings nor act as a supersedeas on the proceedings in the court appealed from: and, in effect, departs from the act of Congress, which declares that a writ of error or an appeal in the Federal courts shall be a supersedeas.

4th. That the effect of the judgment of the court is to disclaim its just control over the parties to the record.


text: Talk:Slaughter-House Cases the Butchers' Benevolent Association of New Orleans v. Crescent City Live/Opinion of the Court


text:
Washington Railroad v. Bradleys

APPEAL from the Supreme Court of the District of Columbia, in a case of a bill by the Washington, Alexandria, and Georgetown Railroad Company, against the City of Washington, and J. H. and A. T. Bradley and others, amended by the addition of new defendants; and of a petition 'by way of cross-bill,' made by one of the respondents in the case, referring to the case by title, and stating that 'the facts fully appear in the case,' praying the reverse of what the complainant had prayed, but not making anybody defendant, nor praying process, and under which no process was obtained; the decree appealed from having been a decree in accordance with the prayer of this 'cross-bill.' The particulars of the case, which was argued here by Messrs. Bartley, Bradley, and Davidge, for the appellants; and by Messrs. Brent, Crittenden, and Durant, contra, are perhaps sufficiently indicated by

Mr. Justice SWAYNE, who thus gave them and delivered the opinion of the court:

title: Washington Railroad v. Bradleys


text: Talk:Washington Railroad v. Bradleys

title: Talk:Washington Railroad v. Bradleys


text:
Washington Railroad v. Bradleys/Opinion of the Court

The appellants are the complainants in the case. The original bill made the corporation of Washington and Joseph H. Bradley and A. Thomas Bradley only, defendants. The prayer of the bill was that the defendants, Joseph H. and A. T. Bradley, should be enjoined from selling, under a deed made to them as trustees for the security and benefit of the corporation of Washington, the railroad described in the deed of trust, and that the deed should be ordered to be delivered up and cancelled. The defendants answered. The complainants filed a replication. A preliminary injunction was granted forbidding the sale of the road. Subsequently the complainants filed an amended bill, whereby they made George W. Riggs and A. T. Keickover, partners, under the name of Riggs & Co., James C. McGuire, D. P. Lengham, and James P. Kibbreth, defendants, in addition to those made by the original bill. All the defendants were duly served with process except Lengham and Kibbreth. McGuire answered. Kibbreth also answered, and thus became a party to the record. Lengham did not appear. The corporation of Washington and J. H. and A. T. Bradley failed to answer the amended bill. Riggs & Company also failed to answer, and it was ordered, as to them, to be taken as confessed. No such order was made as to the corporation of Washington and the trustees in the deed of trust. No further replication was filed by the complainants. Testimony was taken on behalf of the corporation of Washington. The case was referred to an auditor. In this condition of things the defendant Kibbreth filed a cross-bill, wherein he alleged that he was the holder of certain securities indorsed by the corporation of Washington and secured by the deed of trust, and prayed that the preliminary injunction should be dissolved, and that the trustees should be required to proceed to sell the trust property for the benefit of the cestui que trusts. This bill makes no defendants, and asks for no process. None was issued. It appears by the record that the cause came on to be heard upon this cross-bill, and was reserved to the court in bank. In that court it appears that the case came on to be heard on the answer and cross-bill of Kibberth, the original and amended bills of the complainants, the answers, exhibits, and testimony, and that the court decreed that the preliminary injunction should be dissolved; that the trustees should proceed to sell the trust property in the manner prescribed by the deed of trust, and bring the proceeds of the sale into court, and that all further questions arising in the case should be reserved for future consideration and adjudication. This appeal is prosecuted to reverse that decree.

The record is voluminous; we have adverted to its contents only so far as is necessary to develop the points which we think must control the determination of the case. Several important questions involving the merits of the controversy, have been argued by the counsel, both in the briefs submitted and at the bar. In our view of the case it is needless to examine them. We have, therefore, given them no consideration.

The reference to the auditor was not revoked and he made no report. For aught that appears to the contrary, the case is still before him for the purposes specified in the order.

The amended bill was filed without the leave of the court, after the cause was regularly at issue. This was in violation of the 29th rule of equity practice prescribed by this court. That rule provides as follows:

'After replication filed the plaintiff shall not be permitted to withdraw it, and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introducud into the bill, and upon the plaintiff submitting to such other terms as may be imposed by the judge for speeding the cause.'

If the defendants, without laches on their part, had moved the court to strike this bill from the files, it must have been done. After the testimony was taken, without the objection having been made, the case presented a different aspect. But even then such action should have been taken and such terms imposed as would have vindicated the rules of practice by which the court was governed and the regular order of proceeding. To hear the case without any order on the subject was a gross irregularity.

If the amended bill is to be considered as in the case, the omission to file replications to the answers of McGuire and Kibbreth was also an irregularity. The 66th rule is explicit on the subject. The replication is necessary to put the cause at issue. If the complainant omit to file it within the time limited the defendant is entitled as of course to an order for the dismissal of the suit, unless the court or a judge thereof, upon cause shown, shall allow it to be filed nunc pro tunc upon such terms as it may be deemed proper to impose.

Parties defendants are as necessary to cross-bills as to original bills, and their appearance in both cases is enforced by process in the same manner. Without the aid of a cross-bill the court could not have decreed the sale of the property covered by the trust deed. It could only have dismissed the bills of the complainants and have denied the relief sought. #fn-s-s But the cross-bill was a nullity. It was not before the court, and should have been stricken from the files. The complainants prayed for an injunction forbidding the trustees to sell. The court, upon the cross-bill, and according to its prayer, decreed a sale. This error is inevitably fatal to the judgment given.

It is hardly necessary to repeat the axioms in the equity law of procedure, that the allegations and proofs must agree, that the court can consider only what is put in issue by the pleadings, that averments without proofs and proofs without averments are alike unavailing, and that the decree must conform to the scope and object of the prayer, and cannot go beyond them. Certainly without the aid of a cross-bill the court was not authorized to decree against the complainants the opposite of the relief which they sought by their bills. That is what was done by the decree under consideration.

There is a large class of cases in which it has been held that objections not taken in the court below will not be allowed to be taken in this court. We do not intend to impugn this doctrine or to narrow the limits of its just operation. But where there is such a combination of errors, and errors of so grave a character as those which mark the record in the case before us, this principle can have no application.

DECREE reversed, and the cause remanded for further proceedings

IN CONFORMITY TO THIS OPINION.


text: Talk:Washington Railroad v. Bradleys/Opinion of the Court


text: Gunnell v. Bird

title: Gunnell v. Bird


text: Talk:Gunnell v. Bird

title: Talk:Gunnell v. Bird


text: A Dictionary of Artists of the English School/K


text:
Gunnell v. Bird/Opinion of the Court

APPEALS from the Supreme Court of the District of Columbia; the case, as clearly proved, or admitted by the parties, being thus:

On the 1st of May, 1845, Gunnell on one side and Bird and Hepburn on the other, entered into copartnership in the lumber business as equal partners, entitled to an equal share of the profits. Gunnell was the active partner, and put in, as his part of the capital, a stock of lumber valued at $6627.56, and Bird and Hepburn put in $7775.65 in cash, making a joint capital of $14,403.21. The business was carried on for four years, during which period the gross amount of sales was $93,471.11, and the disbursements were, for lumber purchased of others, $55,146.55; for general expenses, $12,242.95; for lime, $732.18; and for rent, not contained in the other accounts, $111, making a total of $68,232.68. At the termination of the partnership the stock on hand, books, and unsettled accounts, were turned over by Gunnell to Bird and Hepburn, who collected $7775.68 (including what they had previously received), and retained in hand bad and uncollected debts to the amount, in 1852, when, as hereafter mentioned, the case came before the auditor, of $5461.56.

The parties were unable to agree upon a settlement of the partnership accounts, and Bird and Hepburn filed their bill in August, 1850, against Gunnell to obtain an adjustment. After answer an auditor was appointed, who reported in August, 1852, that Gunnell was indebted to Bird and Hepburn in the sum of $3001.56, with interest from the 1st of May, 1849, the time of the dissolution of the partnership. The auditor stated the account thus:

made by the defendant,. $93,471

other articles purchased by the

defendant for carrying on the

business, $55,146

And as increased by lime purchased,

not included in the above amount, 732

-  $55,878

the business,    $12,242

unpaid, and not included in the

above,111

capital,     183

-  12,537

debts, property, &c., 5,461.

--   73,877

-

$19,593

-   14,403

-

Net profit,      $5,190

-

Half to each,    $2,595

-

-

$9,222

Interest on difference of capital,  183

- 10,554

-

Capital and profit and interest due Bird and Hepburn:

Collected by them since the dissolution, and amount of their

individual accounts on the books of the complainants, as

shown, 7,552

-

Balance of cash due to the complainants on the defendant's

hands, $3,001

-

Both the complainants having died, a bill of revivor was afterwards filed; a pure bill of revivor, stating only the facts necessary to have the cause revived, and the proceedings continued from the point reached when the complainants died, and concluding with the prayer for a writ to the defendant to show cause why the suit should not be revived.

Rule No. 56, regulating equity proceedings, provides in such case that if no cause to the contrary be shown by next rule-day, 'the suit shall stand revived, as of course.' The subpoena was served in June, 1859. No answer was made by the defendant until October following, and so the suit stood revived on the first Monday of August at latest.

Then the defendant, in October, filed an answer to the bill of revivor, admitting the facts stated in the bill, but going on to state new matter as to the conduct of the complainants in regard to the books, &c., and setting up that Bird and Hepburn should be charged with all the bad and uncollected debts, because by the use of due diligence they could have collected them, but had failed to do so.

To this answer no replication was put in. The matter being referred again to the auditor, he simply affirmed his old report.

Exceptions were taken to the report by both parties, but it was confirmed by the special term of the court, whose decision was affirmed by the general term. From that decision an appeal was taken to this court, and the question now before this court was, whether the auditor's report was correct.

Mr. J. H. Bradley, in support of it.

Messrs. Carlisle and McPherson, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

The opinion of the court is that the auditor committed an error, and we should refer the cause back for a further report if we deemed it necessary to do so; but the facts are confined within such narrow limits, and are so clearly ascertained by the proofs and admissions of the parties before the auditor, that we deem it a useless formality.

The error of the auditor consists in not charging Gunnell with the capital contributed by the partners and placed in his hands, and not crediting him with the cost of the lumber originally contributed by himself.

Being the active managing partner, it is plain that he should be charged with—

He received these amounts, and he should be charged with them.

On the other hand, it is equally plain that he should be credited with—

First, the lumber on hand when the business was commenced, he having disposed of it, and being charged with the proceeds instead.

Secondly, the amount paid out by him to others for lumber,     which was 55,146

Thirdly, the general expenses of the business, 12,242

And leaving a balance in hand, at the conclusion of the     business, of $33,014

The original capital had been increased to this sum, and had the assets all been good, there would have been a clear profit of $18,610.87. But the bad and uncollected debts being deducted, the profit is reduced to $13,149.31; one-half of which, besides his or their original capital, belonged to each party.

Total amount due to Bird and Hepburn, $14,350 31 There remains to be adjusted a question of interest due to Bird and Hepburn for having contributed more capital than Gunnell whilst the business was being carried on. The auditor makes this interest $183.52, one-half of which should be deducted from the share of Gunnell, and added to that of Bird and Hepburn. This would reduce the former to $13,110.45, and raise the latter to $14,442.07.

Now the books show that Bird and Hepburn drew and collected only $7552.68. This left a balance still due them of $6889.39 to be accounted for by Gunnell.

In this account neither party is charged with the bad and uncollected debts. They are simply deducted from the profits, and the loss is thus equally divided. It is claimed by the defendant that Bird and Hepburn should be charged with the whole of this loss because they had the securities and failed to collect them, when, by the use of due diligence, they might have done it. This fact does not appear in the case except by the unsupported allegation of the defendant, made in his answer to the bill of revivor. This portion of the answer was entirely impertinent to the bill, which was strictly and purely a bill of revivor. No formal replication was required to avoid its effect as evidence in the cause.

The result is that the complainants are entitled to a decree against the defendant for the sum of $6889.39, with interest from the 1st day of May, 1849, and costs. The decree of the District Court must be REVERSED, and a decree rendered

FOR THE COMPLAINANTS ACCORDINGLY.

title: Gunnell v. Bird/Opinion of the Court


text: Talk:Gunnell v. Bird/Opinion of the Court


text:
Cooper v. Reynolds

ERROR to the Circuit Court for the Eastern District of Tennessee, the case being thus:

The code of Tennessee of 1857-8, under its chapter on ATTACHMENTS, thus provides:

§ 3455. Any person having a debt or demand due at the commencement of an action; or a plaintiff after action for any cause has been brought, and either before or after judgment, may sue out an attachment at law or in equity against the property of a debtor or defendant in the following cases:

2. Where he is about to remove or has removed himself from the State.

5. Where he absconds or is absconding or concealing himself or property.

§ 3462. Attachments sued out in aid of a suit already brought shall be made returnable to the court or justice before whom the suit is pending.

title: Cooper v. Reynolds


text: Talk:Cooper v. Reynolds

title: Talk:Cooper v. Reynolds


text:
Cooper v. Reynolds/Opinion of the Court

§ 3469. In order to obtain an attachment the plaintiff, his agent or attorney, shall make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim, and also that one or more of the causes enumerated in section 3455 exists.

§ 3470. It is no objection to the attachment that the bill, affidavit, or attachment states, in the alternative or otherwise, more than one of the causes for which an attachment may be sued out.

§ 3471. The officer to whom application is made shall, before granting the attachment, require the plaintiff. . . to execute a bond in double the amount claimed to be due,. . . payable to the defendant and conditioned that the plaintiff will prosecute the attachment with effect, or in case of failure pay, &c.

§ 3472. The affidavit and bond shall be filed by the officer taking them in the court to which the attachment is returnable, and shall constitute a part of the record in the case.

Subsequent sections of the chapter provide for publication for a fixed time in a newspaper published in the county where the suit is brought of a memorandum or notice of the attachment, and declare:

§ 3522. This memorandum or notice shall contain the names of the parties, the style of the court to which the attachment is made returnable, the cause alleged for suing it out, and the time and place at which the defendant is required to appear and defend the attachment suit.

§ 3524. The attachment and publication are in lieu of personal service upon the defendant, and the plaintiff may proceed upon the return of the attachment duly levied, as if the suit had been commenced by summons.

With these enactments of the code in force, W. G. Brownlow, on the 26th September, 1863, sued out a writ of summons in trespass, in the County Court of Knox County, Tennessee, against Reynolds and others, for false imprisonment, for ejecting him from the State, &c.; damages $25,000. To this writ the sheriff returned that 'he had made search and that none of the defendants were to be found in his county.' On the same day that he applied for the summons, and before the same person, one M. L. Hall, who, as clerk, had issued the summons in the trespass suit, Brownlow filed an affidavit, for an attachment against the property of Reynolds and the others. The affidavit, after giving the names of the parties to the summons, ran thus:'The plaintiff makes oath that he has a good cause of action against the defendants herein named in which he will be entitled to recover a very large sum. He further swears that all of defendants have fled from this State OR that they so abscond or conceal themselves that the ordinary process of law cannot reach them; that he has this day instituted an action of trespass against them claiming $25,000. Plaintiff therefore prays for an ancillary attachment against their property in aid of this his suit.'

An attachment bond being given in double the amount ($50,000) the attachment issued; the bond and attachment being, like the affidavit and summons had been, both dated September 26th. The attachment recited the above-given affidavit substantially as made, and directed the sheriff to attach so much of the property of Reynolds and the others as should be sufficient to satisfy the said amount of $25,000, and such estate so to secure that the same might be subject to further proceedings thereon at a court to be held on a day subsequent and specified. The sheriff returned to this last writ that he had attached all the right and title of Reynolds in and to one hundred and sixty acres of land in Knox County. Publication was ordered by the court to be made in the Knoxville Whig (a paper of the county), notifying to the defendants to appear and plead, answer or demur, or that the suit would be taken as confessed and proceeded in ex parte as to them. The record did not, however, set forth the notice which was published, if any was; though it did set forth the order for publication, which was entitled, 'Order of publication, and the publication as made in the Knoxville Whig;' making it appear, perhaps, that the omission to set forth the notice was a clerical error.

The record of Brownlow's suit went on to say that the defendant, Reynolds, and the others being solemnly called to come into court, came not, but made default, and it appearing-the record proceeded-that the attachment had been duly levied on the defendant's property, and that publication had been made according to law, it was ordered that the plaintiff should recover his damages. These were assessed at $25,000, and for this sum execution was ordered to issue, and that the sheriff should sell the one hundred and sixty acres of land attached. The land was accordingly sold under a venditioni exponas, and a deed made by the sheriff to one Cooper, by order of the purchaser. Cooper was put into possession by a writ of haberi facias, issued from the same court in the same proceeding. Being thus in possession, Reynolds, the original owner, brought ejectment in the court below against him. Cooper asserted title under the judicial proceedings above described. It was admitted that Reynolds had title to the land unless it had been divested by those proceedings. The record of the proceedings having been obtained from the Knox County Court, and put in evidence below, the defendant asked the court to instruct the jury:

'That the Court of Knox County had jurisdiction of attachment cases and actions of trespass, and that as it is declared in the judgment in the suit of Brownlow v. Reynolds et al. that the attachment was duly levied on the property of the defendants, and that publication had been made according to law, this adjudication was conclusive upon parties and privies, until the same should be reversed by a court of error; that the sheriff's deed to the defendant made, by virtue of the sale under and by virtue of the judgment of the Court of Knox County, communicated a good title to the premises in controversy to the defendant as against the plaintiff, and that the regularity of the proceedings in the said suit of Brownlow v. Reynolds et al. could not be collaterally inquired into in this cause.'

This instruction the court refused to give, but charged the jury:

'That the summons issued in the case of Brownlow v. Reynolds et al. was not served upon the plaintiff in this suit, and that the question was whether the attachment would bring him into court; that the affidavit upon which the attachment was issued, was not made in conformity to the attachment laws of Tennessee; that it did not show the court in which suit was brought, or state specifically the cause of action or nature thereof, as required under the decisions of the Supreme Court of Tennessee, so as to connect itself with the summons in the action of trespass; that it did not appear that any publication was in fact made, and that the Court of Knox County acquired no jurisdiction of the cause; that the attachment and proceedings thereon were not sufficient to bring Reynolds before the court; that there was no authority for rendering the judgment, and that the levy of the attachment, the judgment of the court, the sale by the sheriff, and the sheriff's deed, were null and void, and conveyed no title.'

Verdict and judgment having gone accordingly for the plaintiff, the question now here, on error by the other side, was whether this instruction was correct.

Mr. Horace Maynard, with whom was Mr. T. A. R. Nelson, for the plaintiff in error:

1. The affidavit is in substantial conformity to the requirements of the code (section 3469 and section 3455, subsections 2, 5). Its words 'have fled from the State,' are equivalent to the words 'removed from the State,' in subsection 2. If not, its words 'they so abscond or conceal themselves that the ordinary process of law cannot reach them,' are equivalent to the words in sub-section 5, 'where he absconds, or is absconding or concealing himself or property.' This construction is sustained by section 3470, which provides that 'it is no objection to the attachment that the bill, affidavit, or attachment states in the alternative, or otherwise, more than one of the causes for which an attachment may be sued out.'

The instruction, 'that the affidavit does not show the court in which suit was brought, or state specifically the cause of action or nature thereof, as required under the decisions of the Supreme Court of the State, so as to connect itself with the summons in the action of trespass mentioned,' was erroneous, because it is provided in section 3472, in regard to the affidavits and bond mentioned in section 3469, that 'the affidavit and bond shall be filed by the officer taking them in the court to which the attachment is returnable, and shall constitute part of the record in the cause.' Now in this case the affidavit was made before M. L. Hall, clerk of the court, who issued the summons and the ancillary attachment; and the affidavit, bond, and attachment, being thus parts of the record, should be construed together and in connection with the summons, which is part of the same record. The summons, affidavit, bond, and attachment all bear the same date, viz., 26th September, 1863. The court is the same; the parties are the same; the amount of damages specified in the summons, affidavit, and ancillary attachment is the same. It is true that the affidavit does not specifically name the court in which the suit was brought, but, in view of the facts just referred to, and in view of the fact that the affidavit was deposited in and formed part of, and was brought from the records of the Court of Knox County, is it possible to doubt that it was part of the proceeding by summons and attachment?

2. The 'order of publication and the publication as made in the Knoxville Whig,' meant to be set out in the record, were a full compliance with the law. In addition to this it is expressly stated in the judgment that it appeared to the court that the attachment had been duly levied, and that publication had been made according to law. This is sufficient.

3. But, however the preceding points may be, still as the general laws of the State confer jurisdiction in cases like this suit of Brownlow's was, all that the court below could properly do was to ascertain from the general laws whether the case tried in the Court of Knox County was within those laws; and having ascertained that it was, it should have presumed, in a collateral inquiry, and especially in reference to the action of a State tribunal, that the jurisdiction was rightfully exercised, and that the plaintiff in error acquired a valid title under the proceedings in the Circuit Court and by virtue of the sheriff's sale and deed.

The instructions asked for were rightly refused, and those which were given were the proper ones to give. No service was made of the summons. It is not pretended that appearance was ever made. Then the affidavit was defective every way. It don't follow, in its terms, the code. Again, in Woodfolk v. Whitmore, the Supreme Court of Tennessee say:

'An auxiliary writ of attachment is void, unless it is stated in the affidavit and alleged in the attachment that a suit has been brought by the plaintiff against the defendant, the nature thereof, the tribunal in which it is depending, the amount of damages laid in the action, and that the cause of action is just.'

Yet further: there was no publication notifying to the defendants to appear. This the code requires. In short, everything is wrong in every part of the proceeding: and deriving vitality only from statute, the judgment and sale founded on it is void. A void sale can be the foundation of no title, whatever one merely irregular may be.

Mr. Justice MILLER delivered the opinion of the court.

The objections taken to the proceeding in attachment under which Cooper, the defendant below, claimed title, are, 1st, that by the law of Tennessee the attachment could not be issued at the beginning of the suit where the action was ex delicto, but could only be issued after suit commenced; 2d, that the affidavit was defective; 3d, that there was no publication of notice, as required by the statutes.

The question of the conformity of these proceedings to the requirements of the statutes under which they were had, has been very fully discussed by counsel, and if we were sitting here as on a writ of error to the judgment of the State court under which the land was sold, we might not find it easy to affirm or reverse the judgment on satisfactory grounds, notwithstanding the abundant citation of authorities from the Tennessee courts. But we occupy no such position. The record of this case is introduced collaterally as evidence of title in another suit, between other parties, and before a court which has no jurisdiction to reverse or set aside the judgment, however, erroneous it may be. Nor can it disregard that judgment, or refuse to give it effect, on any other ground than a want of jurisdiction in the court which rendered it.

It is of no avail, therefore, to show that there are errors in that record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. This principle has been often held by this court, and by all courts, and it takes rank as an axiom of the law. But that its applicability to the present case may be thoroughly understood, reference is made to the most important of the decided cases in this court and in the Supreme Court of Tennessee.

It is necessary, therefore, in the present case to inquire whether the errors alleged affect the jurisdiction of the court.

It is as easy to give a general and comprehensive definition of the word jurisdiction as it is difficult to determine, in special cases, the precise conditions on which the right to exercise it depends. This right has reference to the power of the court over the parties, over the subject-matter, over the res or property in contest, and to the authority of the court to render the judgment or decree which it assumes to make.

By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.

Jurisdiction of the person is obtained by the service of process, or by the voluntary appearance of the party in the progress of the cause.

Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.

It is to be observed that in reference to jurisdiction of the person, the statutes of the States have provided for several kinds of service of original process short of actual service on the party to be brought before the court, and the nature and effect of this service, and the purpose which it answers, depend altogether upon the effect given to it by the statute. So also while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court by the officer's levy of the writ and return of that fact to the court. So the writ of garnishment or attachment, or other form of service, on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court.

When we come to the application of these principles to the case before us, that which leads to some embarrassment is the complex character of the proceeding which we are to consider.

Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and to subject his property, lying within the territorial jurisdiction of the court, to the payment of that demand.

But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within that territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued, and levied on any of the defendant's property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case, whether he appears or not.

If the defendant appears the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff.

That such is the nature of this proceeding in this latter class of cases, is clearly evinced by two well-established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached properly is exhausted. No suit can be maintained on such a judgment in the same court or in any other, nor can it be used as evidence in any other proceeding not affecting the attached property, nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court, in such a suit, cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return, that none can be found, is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court.

Now, in this class of cases, on what does the jurisdiction of the court depend? It seems to us that the seizure of the property, or that which, in this case, is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such a writ is returned into court, the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities; but the writ being issued and levied, the affidavit has served its purpose, and, though a revisory court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon defendant's property.

So also of the publication of notice. It is the duty of the court to order such publication, and to see that it has been properly made, and, undoubtedly, if there has been no such publication, a court of errors might reverse the judgment.

But when the writ has been issued, the property seized, and that property been condemned and sold, we cannot hold that the court had no jurisdiction for want of a sufficient publication of notice.

We do not deny that there are cases which, not partaking of the nature of proceedings in rem, when the judgment is to have an effect on personal rights, as in divorce suits, or in proceedings to compel conveyance, or other personal acts, in which the legislature has properly made the jurisdiction to depend on this publication of notice, or on bringing the suit to the notice of the party in some other mode, when he is not within the territorial jurisdiction.

It is not denied that the court had authority to issue writs of attachment against the property of persons absconding the State, and that such writs could issue in actions for torts. The court has a general jurisdiction as to torts, and attachment is one of its remedial agencies in such cases. Whether the writ should have been issued simultaneously with the institution of the suit, or at some other stage of its progress, cannot be a question of jurisdiction. If it is, any other error which affected a party's rights, could as well be held to affect the jurisdiction.

Such departures from the rules which should guide the court in the conduct of a cause are not errors which render its action void.

The case of Voorhees v. The Bank of the United States, was much like this, and required stronger presumptions in favor of the jurisdiction of the court to sustain its acts than the one before us.

The defendant there, as here, held land under attachment proceedings against a non-resident who had never been served with process or appeared in the case. No affidavit was produced, nor publication of notice, nor appraisement of the property, but it was condemned and sold without waiting twelve months from the return of the writ, and without calling him at three different terms of the court, all of which are specially required by the act regulating the proceedings in Ohio, where they were had. This court held that there was sufficient evidence of jurisdiction in the court which rendered the judgment, notwithstanding the defects we have mentioned, and that they were not fatal in a collateral proceeding.

In the present case there is a sufficient writ of attachment, its levy and return, the judgment of the court, on trial by jury, the order to sell the property, the sale under the venditioni exponas, the writ of possession, sheriff's deed and actual delivery of possession under order of the court. To hold them void is to overturn the uniform course of decision in this court, to unsettle titles to vast amounts of property, long held in reliance on those decisions, and, in our judgment would be to sacrifice sound principle to barren technicalities; and, after a careful examination of the reported cases on this subject, we believe this to be the law, as held by the courts of Tennessee.

JUDGMENT REVERSED, AND A NEW TRIAL ORDERED.

Mr. Justice FIELD, dissenting.

I dissent from the judgment in this case. I am of opinion that the State court of Tennessee never acquired jurisdiction in the case of Brownlow v. Reynolds.

title: Cooper v. Reynolds/Opinion of the Court


text: Talk:Cooper v. Reynolds/Opinion of the Court


text:
Smith v. Stevens

ERROR to the Supreme Court of the State of Kansas, the case being thus:

By treaty of June 3d, 1825, the United States concluded a treaty with the Kansas Indians, containing mutual cessions of territory. The sixth article of the treaty contained a provision that there should be reserved for the benefit of each of the half-breeds of the Kansas Indians named in it (Victoria Smith being one of them), a certain specified allotment of land out of the quantity ceded by the nation to the United States; to be located, &c.

By the eleventh article of the treaty it was stipulated that 'the said Kansas Nation shall never sell, relinquish, or in any manner dispose of the lands therein reserved to any other nation, person or persons whatever, without the permission of the United States, for that purpose first had and obtained, and shall ever remain under the protection of the United States and in friendship with them.'

The lands were afterwards surveyed, located, and numbered according to the treaty, and the half-breed Indians took possession each of his own reservation.

Subsequently to this, that is to say, May 26th, 1860, Congress passed an act which, referring to the treaty of 1825, and reciting that the land reserved 'had been surveyed and allotted to each of the said half-breeds in the order in which they are named in, and in accordance with, the provision of the said sixth article,' enacted:

'That all the title, interest, and estate of the United States is hereby vested in the said reservees, who are now living on the land reserved, set apart, and allotted to them respectively by the said sixth article of said treaty;. . . but nothing herein contained shall be construed to give any force, efficacy, or binding effect to any contract in writing or otherwise, for the sale or disposition of any lands named in this act heretofore made by any of said reservees, or their heirs.'

The second section of this act provides that

'In case any of the reservees now living or any of the heirs of any deceased reservees shall not desire to reside upon or occupy the lands to which such reservees or such heirs are entitled by the provisions of this act, the Secretary of the Interior, when requested by them or either of them so to do, is hereby authorized to sell such lands belonging to those so requesting him for the benefit of such reservees or such heirs,. . . in accordance with such rules and regulations as may be prescribed by the Commissioner of Indian Affairs and approved by the Secretary of the Interior; and patents in the usual form shall be issued to the purchasers of the said land, in accordance with the provisions of this act.'

Section third provides, that the proceeds of the sales 'shall be paid to the parties entitled thereto, or applied by the Secretary of the Interior for their benefit in such manner as he may think most advantageous to the parties.'

These statutes being in force, Victoria Smith, one of the half-breeds named in the treaty of 1825, being in possession of her tract, executed on the 14th of August, 1860, a deed to one Stevens, purporting to convey it to him, and Stevens went into possession.

About two years after this deed was made, that is to say, on the 17th of July, 1862, Congress by joint resolution repealed the above-mentioned second and third sections of the act of 1860.

Victoria Smith now brought an action of ejectment against Stevens in a local State court in Kansas, to recover possession of the tract. Stevens in bar of the suit offered in evidence Victoria's deed of the 14th August, 1860, for the same land, but the court excluded the deed from the jury on the ground that the plaintiff by virtue of the Indian treaty of 1825 and the act of Congress on the subject, was prohibited from executing the deed. The Supreme Court of the State, on appeal, affirmed the ruling of the lower court, and the case was brought here to test the correctness of that decision.

Messrs. Denver, Bradley, and Hughes, for the plaintiff in error:

1. Upon the survey and location of the sections of land respectively, and the delivery of possession to the respective reservees, they were by the terms of the treaty of 1825, and though there were no words of perpetuity in the reservations, respectively clothed with a fee-simple title in those reservations. No patent was necessary to complete the title.

2. But if the title did not pass by the treaty, it did pass in fee by the act of Congress, 26th May, 1860, and the reservees after that act had the right to make a deed in fee. The words of conveyance are very comprehensive. The statute is a grant and is to be taken most favorably for the grantees. There is nothing left in the United States which could draw to it the reversion. Words of perpetuity in such an instrument, made with such full intent, were not needed.

If they 'vested' the fee in the grantees, any restraint upon alienation would have been void. They took freed from such condition, if there was one. And so Congress seem to have considered it, for they do not prohibit future alienation.

Since, then, to allow the second and third sections of this act to be restraints on the disposing power of the grantees, and to limit that power to an application to the Secretary of the Interior, by whom the sale was authorized to be made, would be a plain violation of one of the canons of the law regulating real estate, no such construction can be given unless the intent is too clear to admit of doubt, such construction cannot prevail.

Those two sections are susceptible of a different construction, in harmony with the construction already put upon the first section. The government had already conveyed the lands to the Indians with an unincumbered title. But they desired to protect the Indians against their own improvidence, and to do so imposed this trust on the secretary, to be exercised on the application of the owner of the lands. It was a new duty assigned to the secretary, but neither in terms nor by necessary intendment does it fetter the right of the Indian to dispose of his lands as he may see fit. This view reconciles the act with the established principle of law. And this view is strengthened by the terms of the eleventh article of the treaty, prohibiting the sale of the lands reserved to the nation, but not prohibiting the sale of the private reservations.

Again. There is no prohibition in either the treaty or the act of 1860 against future sales. The Indian had clearly a title to the possession with an inchoate title to the fee. Being in such possession, Victoria conveyed whatever title she had. Congress, by the joint resolution of July 17th, 1862, repealed the second and third sections of the act of 1860. This repeal operated by relation to vest in the purchaser the full title which was vested in her by the first section of the act of 1860.

Mr. J. S. Black, contra, citing Goodell v. Jackson, 20 Johnson, 694, 718, 733; Shawnee County v. Carter, 2 Kansas State, 115; Hunt v. Knickerbacker, 5 Johnson, 332-34; St. Regis Indians v. Drum, 19 Id. 127; Jackson v. Wood, 7 Id. 290; Pettit's Administrators v. Pettit's Distributees, 32 Alabama, 288; Lee v. Glover, 8 Cowen, 189.

Mr. Justice DAVIS delivered the opinion of the court.

title: Smith v. Stevens


text: Talk:Smith v. Stevens

title: Talk:Smith v. Stevens