text:
United States v. Circuit Judges/Dissent Field

Mr. Justice FIELD, with whom concurred GRIER and MILLER, JJ., dissenting:

Unable to concur in the opinion of a majority of the court, which has just been read, I will proceed to give the grounds of my dissent.

The Supreme Court, by the Constitution, takes its appellate jurisdiction over cases 'with such exceptions, and under such regulations as the Congress shall make.' And the designation, by acts of Congress, of the cases to which this jurisdiction shall extend, has uniformly been held to be a legislative declaration that all other cases are excepted from it. Thus in Wiscart v. Dauchy, which was decided as early as 1796, the court said, that if Congress had not provided any rule to regulate its proceedings on appeal, it could not exercise an appellate jurisdiction, and, if a rule were provided, the court could not depart from it. And, in Clarke v. Bazadone, it was decided that a writ of error did not lie from this court to the General Court for the Territory northwest of the Ohio, because Congress had not by its legislation authorized such writ. It was urged, on the argument, that the judicial power under the Constitution extended to all cases arising under the Constitution and laws of the United States, and to controversies in which the United States were a party; and that the Supreme Court had appellate jurisdiction in all these cases, with such exceptions and under such regulations as Congress might make; that Congress had made no exception in that case, which was one arising under the laws of the United States, and no regulation was necessary to give the court the appellate power; that it derived that from the Constitution itself. But the court adhered to its previous ruling, although observing at the same time that from the manifest errors on the face of the record it felt every disposition to support the writ.

In Durousseau v. The United States the subject was again considered, and the court held, that though its appellate powers were given by the Constitution, they were limited and regulated by the judicial act and such other acts as had been passed on the subject. 'When the first legislature of the Union,' said Mr. Chief Justice Marshall, in delivering the opinion of the court, 'proceeded to carry the third article of the Constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. They have not, indeed, made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and its affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.' And, in illustration of this principle, reference is made to the provision of the law which allows a writ of error to a judgment of the Circuit Court, where the matter in controversy exceeds the value of two thousand dollars. 'There is no express declaration,' said the chief justice, 'that it will not lie where the matter in controversy shall be of less value. But the court considers this affirmative description as manifesting the intent of the legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value, and implies negative words.' It follows, therefore, that the appellate jurisdiction of this court exists only in those cases, in which it is expressly granted. In conformity with this principle it has been held that such jurisdiction does not extend to final judgments in criminal cases, it not having been conferred by Congress. A question arising in a criminal case can only be brought before this court for decision upon a certificate of a division of opinion between the judges of the Circuit Court. So, under the Judiciary Act of 1789, jurisdiction to review a judgment or decree of the Circuit Court, rendered in an action brought before it from the District Court on writ of error, was denied, as the act only mentioned judgments and decrees brought before the Circuit Court on appeal from the District Court.

The act of July 1st, 1864, under which the Circuit Court acquired jurisdiction over this case, makes no provision for an appeal from the decree of the court, or for any re-examination of the decree by the Supreme Court. If an appeal exists it must be found in the amendatory Judicial Act of March 3d, 1803, or in the act of March 3d, 1851, to ascertain and settle private land claims in the State of California.

The Judiciary Act of 1789 only provides for a review upon a writ of error of the final judgments and decrees of the Circuit Court where the matter in dispute exceeds the sum or value of two thousand dollars. It is the act of 1803 which extends the appellate power of the court to a review of final judgments and decrees brought up on appeal when the matter in dispute is of the like amount or value; and it limits the review to judgments and decrees rendered in 'cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize.' Subsequent acts of Congress have reduced the required amount or value of the matter in dispute in some cases-as in suits for the protection of copyrights and patents; but in none of them is there any change in the character of the case in which the judgment or decree of the Circuit Court can be reviewed on appeal. Where a review of the action of the Circuit Court upon any other matter is intended, it is authorized by special provision in the act creating the proceeding.

The question, then, upon the act of 1803 is, whether its terms embrace a proceeding taken for the ascertainment and settlement of a claim to land derived from the Spanish or Mexican governments? Such a proceeding is not a suit in admiralty, or course; nor is it a suit in equity, as those terms are there used. By those terms is meant a regular proceeding in a court of justice for relief on equitable grounds in contradistinction to an action at law for the enforcement of legal rights-a proceeding which can only be sustained when plain, adequate, and complete remedy cannot be had at law. The act mentions the pleadings by which the suit is to be conducted; it requires a transcript of the bill, answer, and deposition to be transmitted to the Supreme Court on appeal, clearly indicating the nature of the proceeding to which it refers. The proceeding for the confirmation of a California land claim is of a very different character; is governed by different principles, and supported by different evidence. It is a proceeding taken under a statute conferring a peculiar and limited jurisdiction, created for the purpose of enabling the government to separate private lands from the public domain, and to discharge its political obligations under the treaty of cession. It is in the nature of an inquisition of the government, invoked by the petition of the claimant, and governed by the stipulations of the treaty, the law of nations, the laws, usages, and customs of the former government, the principles of equity, and the decisions of the Supreme Court, so far as they are applicable. Though the principles of equity are to constitute one ground of the decision, the proceeding has nothing in it whatever which will justify its designation as a suit in equity as those terms are used in the act of 1803.

The heads of the different departments are often required by acts or resolutions of Congress to settle claims for losses and liabilities incurred on behalf of the government, or in the attempted performance of contracts on the principles of equity. Thus, in the case of De Groot, who asserted claims for furnishing materials for the Washington aqueduct, the resolution of Congress directed the Secretary of War to settle the claims 'on the principles of justice and equity.' Yet, no one would pretend that the proceeding before the secretary was a suit in equity, as these terms are understood in a legal sense. Nor is an application for a patent, or a proceeding for the assessment of damages, where private property is taken for public purposes, a suit of that nature. Nor would such special proceeding lose its distinctive and special character if by an act of Congress it was made subject to review on appeal by the District Court of the United States. These cases belong to that class of controversies which are properly the subjects of administrative regulation, and do not become converted into suits in equity because judicial agency is brought in to aid the administrative proceeding. They may be submitted to the entire disposition of a board of commissioners without the violation of any principle, just as the California land cases are submitted in the first instance to such board for investigation.

The act of March 3d, 1851, does not provide for any consideration by the Circuit Court of cases of this character. The jurisdiction over these cases is by that act vested, in the first instance, in a board of commissioners, and afterwards, on appeal from the decision of the board, in the District Court. From the decrees of the District Court an appeal lies directly to the Supreme Court. The language of the act is, 'that the District Court. . . shall, on application of the party against whom judgment is rendered, grant an appeal to the Supreme Court of the United States.'

The act of July 1st, 1864, authorizes a transfer from the District Court to the Circuit Court of cases of this kind, where the district judge is interested in the land, the claim to which is pending before him, and also where the case affects the title to lands within the corporate limits of any city or town; but it does not confer any right of appeal from the action of the Circuit Court in these cases after they are transferred. It is contended, however, by counsel, that the right of appeal goes with the transfer of the case.

The argument is, that there is no rule for the decision of the case after it is transferred, unless the provisions of the act of 1851 on this point are considered as governing; and that it is not to be presumed that Congress intended that the right of appeal from the decision should depend upon the contingency of the district judge having an interest in the claim, or the fact that some of the lands involved are situated within the limits of a corporate city.

The answer to the first head of the argument is found in the fact that the rules prescribed by the act of 1851 would govern, independent of their statutory enactment. Whether a title, alleged to have been acquired under the former government, was in fact thus acquired, and entitled to recognition after a change of sovereignty by the new government, would necessarily depend upon the laws, customs, and usages of the former government, the laws of nations, the stipulations of the treaty by which a change of jurisdiction was effected, and the considerations which should govern a just nation in treating of the property of its newly acquired subjects, as explained by the highest tribunal of the country.

And as to the second head of the argument, it may be suggested that it would be a reasonable position to assume that Congress, in passing the act in question, understood the meaning of the language it used, and recognized the difference between the District and Circuit Courts of the United States, and when it omitted to provide any appeal from the decree of the Circuit Court, it intended that none should exist. There is no repugnancy between the acts of 1851 and 1864. Reading them together, it would seem to be clear that Congress intended that when a case was decided by the District Court an appeal should lie; but when decided by the Circuit Court, its decision should be final. There is nothing singular in a provision of this kind, and if there were, it is sufficient that such was the will of the legislature. In matters of survey, which oftentimes determine the value of the whole claim, the decision of the Circuit Court is admitted to be final, made so in express terms by the act. Is there any more reason for doubting the disposition of Congress to trust to that court the final settlement of the title, than there is to trust the final settlement of the boundaries of the land when the title is confirmed?

But it is not necessary to rest this matter upon reasons of this nature. The absence of a provision allowing an appeal was not an oversight on the part of Congress. It is evident, from the general language of the act, and the object sought to be accomplished by it, that it was the intention of the legislature to give finality to the action of the Circuit Court?

The act was designed, as its name purports, to expedite the settlement of titles to land in the State. Great delays and embarrassments were found to exist in determining the location and boundaries of tracts confirmed after the question of title had been adjudicated. The hearing by the District Court of exceptions to surveys returned by the surveyorgeneral, interposed by parties possessing or assering adverse interests, the taking of depositions, the discussion of counsel, and the modifications or new surveys sometimes ordered, necessarily occupied the time usually taken by an ordinary suit at law. Then followed the right of appeal to the Supreme Court from the action of the District Court, not merely by the original contestants to the proceeding, but by third parties intervening, whether adjoining proprietors, purchasers under the original grantee, or persons claiming by pre-emption, settlement, or other right under the United States. To obviate the delays and expense necessarily attending proceedings of this character, particularly as occasioned by the appeal to the Supreme Court, and to relieve that tribunal, burdened by a crowded docket, the act limited its jurisdiction to cases in which appeals were then pending, and vested jurisdiction in the Circuit Court, over cases in which appeals might be subsequently taken When from the decree of the District Court, approving or correcting the survey, no appeal had been taken, 'no appeal,' says the act, 'to that court shall be allowed, but an appeal may be taken, within twelve months after this act shall take effect, to the Circuit Court of the United States for California, and said court shall proceed to fully determine the matter.'

Following these provisions is the section which directs that when the district judge is interested in any land, the claim to which, under the act of March 3d, 1851, is pending before him on appeal from the board of commissioners, the case shall be transferred to the Circuit Court, 'which shall thereupon take jurisdiction and determine the same.' The act then proceeds as follows: 'The said District Courts may also order a transfer to the said Circuit Court of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit.'

The answer to the last objection will be more obvious if reference is made to the circumstances under which the act of 1864 was passed, as given in the opinion of the Circuit Court. These circumstances are not referred to for the purpose of controlling the construction of the language of the act, but in answer to suppositions as to the intention of Congress.

At the passage of the act there were only two cases pending in the District Courts of California, with reference to which the authority conferred by the clause in question could be exercised, the case of the City of San Francisco, and the case of the City of Sonoma, both against the United States. The first case had then been pending in the District Court for over eight years. In the mean time the city had extended in all directions, and interests of vast magnitude had grown up, which demanded that the title to the land upon which the city rested should be, in some way, speedily and finally settled. The land commissioners had adjudged that the claim of the city was valid within certain described limits. The United States, through their highest legal officer, had assented to this adjudication, and the principal question on appeal before the District Court was as to the additional quantity claimed over the quantity confirmed.

The case of the City of Sonoma had been likewise pending in the District Court on appeal for over eight years. In this case the United States had, through the attorney-general, signified their assent to a confirmation of the decree of the board, and the principal question on appeal here was also as to the additional quantity claimed by the city.

It was under these circumstances that the law was passed authorizing a transfer of these cases to the Circuit Court. If an appeal from its action had been intended, no beneficial object would have been accomplished by the transfer, for the same delay would follow an appeal from the Circuit Court as would follow an appeal from the District Court. Nor can any reason, in that view, be assigned for allowing both the district and circuit judges, if they desired, to sit in the hearing of these cases.

The acts of 1792, 1809, and 1821, which authorize a trans fer of causes from the District Court to the Circuit Court, where the district judge is interested, or has been counsel in the case, or is disabled from performing the duties of his office, or is related to either of the parties, have no bearing upon the question under consideration. They do not confer any right of appeal from the action of the Circuit Court after the cases are transferred, or any right to have such action reviewed on writ of error. Such right, when it exists, depends upon the acts of 1789 and 1803; that is, upon the nature of the case and the amount or value of the matter in controversy; and the latter act, which is the only one relating to appeals, does not cover, as I have endeavored to show, a decree in a proceeding for the settlement of a California land claim, where the right or title is alleged to have been derived from the Spanish or Mexican governments.

For a short time it seemed possible that the present case might assume an interest beyond that of the point of law involved. The decree of the Circuit Court from which an appeal was prayed, and which was made May 18th, 1865, was one settling the title to a large part of the city of San Francisco; how considerable will be seen from the decree itself, of which the following is the material portion:

'The land of which confirmation is made, is a tract situated within the county of San Francisco, and embracing so much of the extreme upper portion of the peninsula above ordinary high-water mark (as the same existed at the date of the conquest of the country, namely, the 7th of July, A.D. 1846), on which the city of San Francisco is situated, as will contain an area of four square leagues-said tract being bounded on the north and east by the Bay of San Francisco; on the west by the Pacific Ocean; and on the south by a due east and west line, drawn so as to include the area aforesaid, subject to the following deductions, namely: such parcels of land as have been heretofore reserved or dedicated to public uses by the United States; and, also, such parcels of land as have been by grants from lawful authority vested in private proprietorship, and have been finally confirmed to parties claiming under said grants by the tribunals of the United States, or shall hereafter be finally confirmed to parties claiming thereunder by said tribunals, in proceedings now pending therein for that purpose; all of which said excepted parcels of land are included within the area of four square leagues above mentioned, but are excluded from the confirmation to the city. This confirmation is in trust, for the benefit of the lot-holders under grants from the pueblo, town, or city of San Francisco, or other competent authority, and as to any residue, in trust for the use and benefit of the inhabitants of the city.' However, immediately after the expression of the views of the majority of the judges, as given in the preceding case, Congress passed the following act:

An act to quiet the title to certain lands within the corporate limits of the City of San Francisco.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That all the right and title of the United States to the land situated within the corporate limits of the city of San Francisco, in the State of California, confirmed to the city of San Francisco by the decree of the Circuit Court of the United States for the Northern District of California, entered on the 18th day of May, 1865, be and the same are hereby relinquished and granted to the said city of San Francisco and its successors, and the claim of the said city to said land is hereby confirmed, subject, however, to the reservations and exceptions designated in said decree, and upon the following trusts, namely: that all the said land, not heretofore granted to said city, shall be disposed of and conveyed by said city to parties in the bona fide actual possession thereof, by themselves or tenants, on the passage of this act, in such quantities and upon such terms and conditions as the legislature of the State of California may prescribe; except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses. Provided, however, That the relinquishment and grant, by this act, shall not interfere with or prejudice any valid adverse right or claim, if such exist, to said land or any part thereof, whether derived from Spain, Mexico, or the United States, or preclude a judicial examination and adjustment thereof.

Approved, March 8, 1866.


text: Talk:United States v. Circuit Judges/Dissent Field

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text: Merriam v. Haas (70 U.S. 687)

title: Merriam v. Haas (70 U.S. 687)


text: Talk:Merriam v. Haas (70 U.S. 687)

title: Talk:Merriam v. Haas (70 U.S. 687)


text:
Merriam v. Haas (70 U.S. 687)/Opinion of the Court

MERRIAM filed his bill in equity in the Federal court for Minnesota, for the foreclosure of a mortgage executed by Haas and wife for $6000, with interest at 15 per cent.

The defendants answered, admitting the execution of the mortgage, and that $4000 and interest (parcel of the amount so secured) was due; and they submitted to a decree for that sum. But as to the residue ($2000 and interest) they insisted that they never owed it, because, they alleged, they had only received from Merriam the sum of $4000, and not the sum of $6000 as was agreed, and on the faith of which agreement the mortgage had been executed.

In June, 1861, the court gave a decree for $4000, with interest and costs; the whole amounting to $5271, but refused to give a decree including the $2000 disputed. In April, 1862, the complainant appealed. On the 15th November, of the same year, that is to say, after the appeal, there was a sale and report of the master in execution of the decree; and on the following November, that, to wit, of 1863 (the sale not being yet confirmed), the defendant paid into court the amount for which the decree was given, with interest; which whole sum the complainant received and gave his receipt for. The case being now here, Mr. Carlisle moved to dismiss the appeal, 'for that after the same was prayed by these appellants and allowed by the court, the decree below having been in their favor for $5271, interest and costs, but having denied them an additional sum which they had claimed in their bill, the said appellants by their voluntary act as appears by the record, enforced and took advantage of the said decree, and accepted and received the sum thereby awarded to them; whereby they waived their appeal, and are estopped to question the said decree in this court.

'On consideration,' &c.

'MOTION OVERRULED.'

This motion was decided in February, 1864, about a month before the present reporter was appointed, and is reported now by him from the records only. The decision, to which MILLER, J., referred counsel, from the benech, was much relied on by the attorney-general, in argument, in the next case; on which account specially the reporter presents the matter; though, of necessity, in an imperfect way. It may be added, that the case coming on finally to be heard on its merits, the decree below was reversed: and the case remanded, with directions to enter a decree which should give the complainant the whole $6000 claimed by him.


text: Talk:Merriam v. Haas (70 U.S. 687)/Opinion of the Court


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United States v. Dashiel (70 U.S. 688)

THE United States brought suit at common law-'debt on bond' for $20,085.74 against Major Dashiel, a paymaster in the army of the United States, and his sureties. Dashiel denied every part of the demand, but claimed specially a deduction of $13,000 from the sum sued for, on the ground that while travelling in remote regions of Florida, where he was going with the whole sum in gold coin to pay the army, he had, without the least want of care on his part, been robbed of about $16,000; as was proved among other ways by the fact that a portion of the money, $3000, easily identified, was discovered among negro slaves of the neighborhood, and got back.

The jury under a charge from the court made allowance for the part of which Major Dashiel alleged that he had been robbed; and found for the United States for a portion only of the sum claimed, to wit, $10,318.22. Judgment was entered accordingly. Not being satisfied with judgment for this amount, the United States, on the 1st September, 1860, took a writ of error to this court. Dashiel had also excepted. On the 15th April, 1860, however-before the government had thus taken its writ of error-it sued out execution, and, Major Dashiel having waived advertisement, levied on a large amount of real estate and on eight slaves. A portion of the real estate was sold June 5th, 1860; $5275 having been got for it. The sale was then adjourned.

The only evidence as to what led to an adjournment of the sale appeared in a letter from the deputy marshal who superintended it to the acting marshal, his principal, sent up in the record, which came up on certiorari for diminution after the writ of error was taken out. In regard to this, the record, or amended record as it may be called, after setting out the execution, levy, and return, thus in substance ran:

'Accompanying said return and inclosed with the execution, whether as part of the return or explanatory of the same, as made a part of the record, is the following letter, in words, to wit:

SAN ANTONIO, TEXAS, June 7th, 1860.

TO W. MASTERSON, ESQ.,

Acting United States Marshal, Austin.

DEAR SIR: Your note of the 4th June came to hand yesterday. You learned by my note of the 5th that I had adjourned the sale, after the bids amounted to $5275, as directed by your note of the 2d. I now act upon your note of the 4th, received yesterday, and return, as you directed, the execution. I think the attorney will certainly approve of your action in staying the sale on the bids reaching $5000; and I cannot but think that he will, upon seeing the abundance of the levy, and learning that there is no hindrances thrown in the way of a forced collection, but a modest petition for time the better to enable the defendant to find purchasers for his property, now in the clasp of the law. The sympathies of this community for Major Dashiel, where he has long lived, with his family, all plead for extension of time, if possible, to the next January Term of the honorable District Court. The interest still accruing, would the United States be much injured by the extension?

Yours, respectfully,

S. NEWTON.'

Mr. Paschall, for Dashiel, defendant in error, now moved to dismiss the writ of error; the ground assigned in the motion having been that after judgment rendered 'there was an execution sued out by the plaintiff, a levy, and sale, and satisfaction.'

In favor of the motion he argued:

I. It is an old rule of the law, one not departed from either in modern times, that a levy on sufficient personal property operates, generally speaking, as an extinguishment of a judgment. So far back as Queen Elizabeth's time, Croke gives us the case of Mountney v. Andrews, where it is said, that 'to a scire facias on a judgment the defendant may plead execution on a ''fi. fa. for the same debt, without showing that the writ is returned;''' implying, of course, that the levy was satisfaction. Lord Raymond, in a later day (Queen Anne's), gives us Clerk v. Withers, in which the marginal abstract is this: 'When the defendant's goods are seized of a ''fi. fa. the debt is discharged''.' Nor is this ancient English law alone. It has been nowhere so explicitly declared, or so far carried out, as in the United States. 'When an officer, under an execution, has once levied upon the property of the defendant sufficient to satisfy the execution,' says the Supreme Court of New York, A.D. 1815, 'he cannot make a second levy. This principle appears to be well settled.' Indeed, as that court remarks in the case cited, it had been previously held in New York, that a sheriff could not take security on a ''fi. fa., and still hold the execution in his hand, using it afterwards to enforce payment; and they say, 'According to the principle here recognized, it was immaterial whether the property first levied on was sufficient to satisfy the execution or not.' In 1825, we have in the same Supreme Court the case of Ex parte Lawrence, where the abstract is-'A levy on personal property sufficient to satisfy a fi. fa., is an extinguishment of the judgment on which it issued.' 'This,' say the court there, 'has been often'' held;' and they declared that the judgment therefore ceased by such levy to be a lien on real estate which it previously bound. Numerous other New York cases may be referred to for the same law; if, indeed, after a matter has been once solemnly adjudged, it is respectful to refer to cases affirming it with each reverting term.

In New England, the great name of Chief Justice Parsons, delivering the opinion of his court, sanctions the same position. He says:

title: United States v. Dashiel (70 U.S. 688)


text: Talk:United States v. Dashiel (70 U.S. 688)


text:
United States v. Dashiel (70 U.S. 688)/Opinion of the Court

'When goods sufficient to satisfy an execution are seized on ''fi. fa.'', the debtor is discharged, even though the sheriff waste the goods or misapply the money arising from the sale, or does not return his execution; for by a lawful seizure the debtor has lost his property in the goods.'

And these principles of law, found alike in England and in our older States, were early adopted, and are completely encysted in the jurisprudence of Texas, from which this case comes. There, as elsewhere, the courts declare, that prima facie a levy of goods, if valid and on property sufficient, is 'satisfaction.'

There is really no authoritative case contrary to these decisions about the effect of a levy, though there are extra-judicial dicta, and some head-notes reporting them, and giving dicta rather than points adjudged, which might lead to a conclusion that there was. Thus in Green v. Burke, in New York, A.D. 1840, it is said in the syllabus:

'A levy by virtue of an execution is not always a satisfaction of the judgment; though the property levied on be of sufficient value to satisfy the execution, and the defendant be not guilty of eloignment. It is only satisfaction submodo. If the levy fail to produce satisfaction in fact without any fault of the plaintiff, he may proceed to obtain execution.'

But, without affirming or denying what is here said, it is enough to remark that the case itself was one where the so-called 'levy' was made by a constable who was a minor, and who had abandoned the levy to relieve himself from the consequence of assuming the duties of the office within age-an office which it was a fraud in him to attempt to fill. It was held, and rightly of course, that such a levy-no levy whatever-was not a satisfaction.

So, in The People v. Hopsen, Bronson, C. J., says:

'If the broad ground has not yet been taken, it is time it should be asserted that a mere levy upon sufficient personal property, without anything more, never amounts to a satisfaction of the judgment. There is no foundation in reason for a different rule. . . . ''It often happens that a levy is overreached by some other lien, is abandoned for the benefit of the debtor, or defeated by his misconduct. In such cases there is no color for saying that the judgment is gone; and yet they are included in the notion that a levy satisfies the debt''. . . . The true rule I take to be this, that the judgment is satisfied when the execution has been so issued as to change the title, or in some way deprive the debtor of his property.'

If Bronson, C. J., meant only to say that the presumption of satisfaction from a levy on sufficient property, was not one juris et de jure-one not incapable of being rebutted-a rule which had certain exceptions-as the italicized portion of his remarks might lead us to suppose he did mean-there is nothing to be denied by us. If, however, he meant to say that the rule established by his predecessors, in his own court, in its best days, had 'no foundation in reason,'-a meaning difficult, with proper respect to him, to suppose-then we may observe, as the fact is, and as he himself declares it was, that his remarks on this subject were not necessary to the decision; and were made only at the wish of counsel; and, we may observe also, that they are put by the reporter as dicta simply 'per Bronson, C.J.;' impertinent really to the case. What he, Bronson, C.J., under these circumstances 'took to be the true rule' is not vastly important in considering what the rule is as established by judicial precedents.

It must be observed that neither this case where Bronson, C.J., thus speaks, nor Green v. Burke before it, where we have extracted the loose syllabus, were cases at all concerning writs of error, or of motions to dismiss or quash them.

Will the doctrine, declared in the New York case of Ostrander v. Walter, and recognized in some few others, be set up as a reply?-'that where an execution has been levied upon property of the defendant, and abandoned by his request and for his benefit, this will not amount to a satisfaction of the judgment?' If it is, the answer is that the rule does not apply to any facts of this case. Assuming-what is not true in law-that the letter of the deputy marshal was a part of the marshal's 'return' to his execution, yet it is plain that the sale was stayed by the deputy in consequence of an order from the marshal. 'I had adjourned the sale,' he writes, 'as directed by your note of the 2d.' 'I think the attorney will certainly approve your action in staying the sale,' &c. There were 'no hindrances' thrown in the way by Major Dashiel. He had forwarded a sale by waiving advertisement; and even the 'modest petition' seems to have come from others rather than from himself. It was 'the sympathies of the community,' where he had long lived and all his family, which pleaded 'for an extension' of time: not himself.

In this state of facts it is not necessary to consider what is the effect of a surrender made in consequence of a debtor's request when the creditor has his hand full of property. A striking effect of such an act may be seen in Magniac v. Thomson, where the act, done clearly for the debtor's benefit, cost the creditor $80,000. Creditors who have pushed their debtors to the wall with all the sharp instruments of the law must be careful what they do. In seizing a man's property and putting it under a sheriff's wand, they do an extreme act. They can, indeed, have satisfaction if they will pursue such odious measures. But if they become compunctious and alarmed, and afraid to go the ultima ratio of the law, and sell, they throw their chance away. That is their affair: and they had better have thought of it before they made the levy. If a creditor, with his eyes open, were at his debtor's request and for his debtor's benefit deliberately to enter satisfaction of record, who doubts that his writ of error would be gone? If having a levy, from which, as in this case, the whole debt could have been obtained, he abandons it, wherein differs the case? But this is useless discussion; for there is no evidence that Dashiel asked anything.

Will it be said again that the rule does not apply to a levy made on land? Granted. But here the levy was on slaves; chattels as our laws then stood.

Or that the rule has several exceptions? Granted again. But unless you show that they apply to us, of what pertinence is the argument?

Or will it be said that there is no evidence that the levy was sufficient? The answer is twofold; first of law and second of fact. Of law, in that the presumption of law is, when a levy is made, on goods, that the goods are sufficient to satisfy the levy. In Bryan v. Bridge, as here, a levy had been made on slaves. The court say: 'If the levy had been valid the plaintiffs in the execution could have had no other until it had been shown that the levy so first made was not sufficient. Prima facie, it was sufficient.' In our case without doubt the levy was, in fact, sufficient. The letter of the deputy marshal shows it. He speaks of 'the abundance' of the levy. The property was large.

We have then these general rules: (i) that a levy on sufficient personal property is satisfaction; and (ii) that the prima facie presumption is that any levy on personal property is on sufficient property.

But if a judgment is satisfied, how can error lie on it? 'When a party,' says an eminent Missouri judge, delivering the opinion of the Supreme Court of that State, 'voluntarily extinguishes his own judgment, he cannot afterwards complain of it. He is under no necessity of suing out execution to enforce his judgment and receive satisfaction of it; and if by his own voluntary act he extinguishes his judgment, what is there on which a writ of error can operate?'

In Pennsylvania, also, the doctrine so forcibly above expressed was acknowledged and acted on by its Supreme Court, Gibson, C.J., being then at the head of it. A motion was made there in Laughlin v. Peebles to quash a writ of error; various reasons were put forward why the writ should be quashed: among them that the plaintiff had in some way received the benefit of his judgment. This was enough: and the reporter says:

'The court being satisfied from the evidence exhibited that the plaintiff had received the benefit of his judgment, on this ground alone, quashed the writ of error.'

II. Independently of this ground of satisfaction of the debt and extinction of the base of error, comes the settled and here kindred rule about election. A party having several remedies must elect. On this principle it is, rather perhaps than on the other, that proceeds the case of Hall v. Hrabrowski in the Supreme Court of Alabama. The syllabus of the case is:

'Where a plaintiff who had obtained judgment below, sued out a writ of error to this court to reverse it, and whilst the cause was pending here, sued out execution on his judgment and collected the money, and the fact not being brought to the notice of this court until after its judgment had been pronounced, reversing and remanding the cause, an order was made directing that the certificate of this court should not issue, until the debt, interest, and costs below were refunded to the defendant.'

'If the motion had been made before judgment was rendered in this court we would have directed a stay of all proceedings; it being obviously unjust that the plaintiff should collect the amount of his judgment which he is complaining of as erroneous, and in which he may on another trial fail to recover anything. It is both vexatious and oppressive in the plaintiff to prosecute a suit here to reverse a judgment the correctness of which he impliedly affirms by coercing payment from the defendant under it.'

The observations of the court above italicized have particular force in this case, for Dashiel denied the whole claim; both parties excepted; and on a second trial the government may get nothing.

Indeed, in thus applying this rule of election-the rule, that where a party has two remedies, and exhausts one, he shall not afterwards invoke the other-we do but carry out principles that exist in analogous matters. Thus, a defendant cannot have a writ of error after audita querela. So, where a party had agreed that he would not prosecute a writ of error, he cannot afterwards be allowed to do so, but is estopped. So, where he voluntarily elected to take a non-suit, he cannot have a writ of error.

The fact that our suit was one at common law will be noted. In cases in chancery there may be many appeals; appeals coming from different parts of it. Blossom v. Railroad Company, illustrates our idea; and it is this which renders Merriam v. Haas, reported just before this case, no precedent in it. That was a case in chancery; a bill to foreclose a mortgage; nor was there any execution levied.

Mr. Speed, A. G., contra; citing and relying on Merriam v. Haas.

Mr. Justice CLIFFORD delivered the opinion of the court.

Defendants move to dismiss the case because it appears by the record, as they allege in the motion, that the judgment in the court below was in favor of the plaintiffs, and, that before suing out the writ of error, they obtained satisfaction of the judgment 'by execution and sale.'

1. Principal defendant had been a paymaster in the army of the United States, and the record shows that the suit was commenced against him and the other defendant, as one of his sureties on the fficial bond of the former, given for the faithful discharge of his duties. Breach of the bond as assigned in the declaration was that the principal obligor failed to pay over, or account for the sum of twenty thousand and eighty-five dollars and seventy-four cents of the public moneys intrusted to his keeping, and for which he and his sureties were jointly and severally liable.

2. Claim of the plaintiffs was for that sum, as shown in the treasury transcript, but the defendants in their answer denied the whole claim, and they also pleaded specially that the principal obligor was entitled to a credit of thirteen thousand dollars, because, as they alleged, he was robbed, without any negligence or fault on his part, of that amount of the moneys so intrusted to his custody, during the period covered by the declaration. Verdict was for the plaintiffs for the sum of ten thousand three hundred and eighteen dollars and twenty-two cents, and on the eighteenth day of January, 1860, judgment was entered on the verdict. Both parties excepted, during the trial, to the rulings and instructions of the court, and the record shows that their respective exceptions were duly allowed.

3. Execution was issued on the judgment on the fifteenth day of April, in the same year, and the return of the marshal shows that on the twenty-eighth day of the same month he seized certain real property and slaves sfficient in all to satisfy the judgment. Formality of an advertisement, prior to sale, was omitted by the marshal at the request of the principal defendant, and on the fifth day of June following, the marshal sold certain parcels of the real property at public auction, amounting in the whole to the sum of five thousand two hundred and seventy-five dollars, as appears by his return. Nearly half the amount of the judgment was in that manner satisfied, but the clear inference from the return of the marshal, and the accompanying exhibit, is that the sale was suspended and discontinued at the request of the principal defendant and for his benefit. Request for the postponement of the sale came from him, and it was granted by the marshal, as stated in the record, the better to enable the defendant to find purchasers for his property. Writ of error was sued out by plaintiffs on the first day of September, 1860, and was duly entered here at the term next succeeding, and since that time the case has been pending in this court.

4. Motion to dismiss is grounded solely upon the alleged fact that the judgment was satisfied before the writ of error was sued out and prosecuted. Matters of fact alleged in a motion to dismiss, if controverted, must be determined by the court. Actual satisfaction beyond the amount specified in the return of the marshal cannot be pretended, but the theory is, that the levy of the execution in the manner stated affords conclusive evidence that the whole amount was paid, and it must be admitted that one or two of the decided cases referred to appear to give some countenance to that view of the law; that is, they assert the general doctrine that the levy of an execution on personal property sufficient to satisfy the execution, operates per se as an extinguishment of the judgment. None of those cases, however, afford any support to the theory that any such effect will flow from the issuing of an execution, and the levying of the same upon land. On the contrary, the rule is well settled that in the latter case no such presumption arises, because the judgment debtor sustains no loss by the mere levy of the execution, and the creditor gains nothing beyond what he already had by the lien of his judgment. Reason given for the distinction is that the land in the case supposed remains in the possession of the defendant, and he continues to receive and enjoy the rents and profits. Many qualifications also exist to the general rule as applied to the levy of an execution upon the goods of the judgment debtor, as might be illustrated and enforced by numerous decided cases. Where the goods seized are taken out of the possession of the debtor, and they are sufficient to satisfy the execution, it is doubtless true, that if the marshal or sheriff wastes the goods, or they are lost or destroyed by the negligence or fault of the officer, or if he misapplies the proceeds of the sale, or retains the goods and does not return the execution, the debtor is discharged; but if the levy is overreached by a prior lien, or is abandoned at the request of the debtor or for his benefit, or is defeated by his misconduct, the levy is not a satisfaction of the judgment. Rightly understood, the presumption is only a prima facie one in any case, and the whole extent of the rule is that the judgment is satisfied when the execution has been so used as to change the title of the goods, or in some way to deprive the debtor of his property. When the property is lost to the debtor in consequence of the legal measures which the creditor has pursued, the debt, says Bronson, C. J., is gone, although the creditor may not have been paid. Under those circumstances the creditor must take his remedy against the officer, and if there be no such remedy he must bear the loss.

Tested by these rules, and in the light of these authorities, it is very clear that the theory of fact assumed in the motion cannot be sustained. Satisfaction of the judgment beyond the amount specified in the return of the marshal is not only not proved, but the allegation is disproved by the amended record.

5. Amended record undoubtedly shows that an execution was issued on the judgment, and that the same was partially satisfied before the writ of error in this case was prosecuted: but the defendants scarcely venture to contend that a partial satisfaction of the judgment before the writ of error is sued out, is a bar to the writ of error, or that it can be quashed or dismissed for any such reason. Doubt may have existed upon that subject in the early history of the common law; but if so, it was entirely removed by the elaborate judgment of Lord C.J. Willes, in the case of Meriton v. Stevens, which is most emphatically indorsed in a well-considered opinion of this court. Nothing is better settled at the common law, says Mr. Justice Story, in the case of Boyle v. Zacharie et al., than the doctrine that a supersedeas, in order to stay proceedings on an execution, must come before there is a levy made under the execution; for if it come afterwards, the sheriff is at liberty to proceed, upon a writ of venditioni exponas, to sell the goods.

Form of the supersedeas at common law was 'that if the judgment be not executed before the receipt of the supersedeas, the sheriff is to stay from executing any process of execution until the writ of error is determined.' Settled construction of that order was, 'that if the execution be begun before a writ of error or supersedeas is delivered, the sheriff ought to proceed to complete the execution so far as he has gone.' Directions in the leading case were accordingly that the sheriff should proceed to the sale of the goods he had already levied, and that he should return the money into court to abide the event of the writ of error.

6. Effect of a writ of error under the twenty-second section of the Judiciary Act, is substantially the same as that of the writ of error at common law, and the practice and course of proceedings in the appellate tribunals are the same except so far as they have been modified by acts of Congress, or by the rules and decisions of this court. Service of a writ of error, in the practice of this court, is the lodging of a copy of the same in the clerk's office where the record remains. Whenever a defendant sues out a writ of error, and he desires that it may operate as a supersedeas, he is required to do two things, and if either is omitted, he fails to accomplish his object: 1, he must serve the writ of error as aforesaid, within ten days, 'Sundays exclusive,' after the rendition of the judgment; and 2, he must give bond with sureties to the satisfaction of the court, for the benefit of the plaintiff, in a sum sufficient to secure the whole judgment in case it be affirmed. Security for costs only is required of the defendant when the writ of error sued out by him does not stay the execution, and he is not compelled, in any case, to make the writ of error a supersedeas, although it may be sued out within ten days after the judgment.

Plaintiff also may bring error to reverse his own judgment, where injustice has been done him, or where it is for a less sum than he claims; but he, like the defendant, is required to give bond to answer for costs. Writs of error at common law, whether sued out by plaintiff or defendant, operated in all cases as a supersedeas; but it has never been heard in a court of justice since the decision in the case of Meriton v. Stevens, that they had any retroactive effect, or any effect at all, until they were allowed and served.

Applying these rules to the present case, it is clear that there was no conflict between the action of the marshal in obtaining partial satisfaction of the judgment in this case, and the pending writ of error which was subsequently sued out and allowed. Partial satisfaction of a judgment, whether obtained by a levy or voluntary payment, is not, and never was a bar to a writ of error, where it appeared that the levy was made, or the payment was received prior to the service of the writ, and there is no well-considered case which affords the slightest support to any such proposition. Subsequent payment, unless in full, would have no greater effect; but it is unnecessary to examine that point, as no such question is presented for decision. Where the alleged satisfaction is not in full, and was obtained prior to the allowance of the writ of error, the authorities are unanimous that it does not impair the right of the plaintiff to prosecute the writ, and it is only necessary to refer to a standard writer upon the subject to show that the rule as here stated has prevailed in the parent country from a very early period in the history of her jurisprudence to the present time.

Substance of the rule as there laid down is, that where the execution is issued before the writ of error is sued out, if the sheriff has commenced to levy under the execution, he must proceed to complete what he has begun; but if when notified of the writ of error he has not commenced to levy, he cannot obey the command of the execution. Even the levy of the execution after the supersedeas has commenced to operate, is no bar to the writ of error; but the court, on due application, will enjoin the proceedings and set the execution aside, and it has been held that the sheriff and all the parties acting in the matter, are liable in trespass.

Neither the decisions of the courts, therefore, nor text writers, afford any countenance to the theory that partial satisfaction of the execution operates as an extinguishment of the judgment, or a release of errors, or that it takes away or impairs the jurisdiction of this court. Carefully examined it will be found that the cases cited assert no such doctrine, but that every one of them proceeds upon the ground that where the plaintiff has sued out execution, enforced his judgment, and obtained full satisfaction, there is nothing left on which a writ of error can operate.

Import of the argument is, that a writ of error lies only on a final judgment, and that the plaintiff, when he accepts full satisfaction for his judgment, removes the only foundation on which the writ of error can be allowed. Suffice it to say, in answer to that suggestion, that no such question arises in the case, which is all that it is necessary to say upon that subject at the present time.

DENIED.

Mr. Justice GRIER (with whom concurred NELSON and SWAYNE, JJ.), dissenting:

I think this writ of error ought to be dismissed. The plaintiff having elected to take execution and satisfy his judgment, has no longer any judgment upon which the writ can operate. His election to accept and execute his judgment below is a retraxit of his writ of error. Such has been the unanimous decision of every court of law that has passed on the question. Appeals in chancery can furnish no precedent for a contrary decision. A decree in chancery may have a dozen different parts, some of which may stand good and be executed, while others may be litigated on appeal. A judgment at law is one thing. The plaintiff cannot divide his claim into parts, and when he obtains judgment for part, accept that part, and prosecute his suit for more. Having a right to elect to pursue his judgment or his writ of error he cannot elect to have both.


text: Talk:United States v. Dashiel (70 U.S. 688)/Opinion of the Court


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Minnesota Company v. Chamberlain Graham Scott

THESE were appeals from decrees of the Circuit Court for Wisconsin, sustaining demurrers to two bills of complaint. Both bills and the essential question in each were the same; certain small differences between the bills being noted further on. The case was this:

In September, 1857, the La Crosse and Milwaukie Railroad Company, a company organized to build a railroad from Milwaukie to La Crosse, across the State of Wisconsin, but whose road was not then completed, entered into articles of agreement with Chamberlain, for the double purpose of insuring the completion of the road and securing to him a large debt, alleged to be due from the company. By this contract the road was leased to Chamberlain, in consideration that he would apply the income to the working and extension of the road, to the payment of interest on debts of the company, and to the payment of Chamberlain's own debt, on satisfaction of which, either by application of the income or otherwise, the road was to be restored to the company. After the execution of this contract, and in the following month, the company confessed a judgment in his favor for $629,089.72. Afterwards, and in the same month, Cleveland obtained a judgment against the company for $111,700.71.

To enforce the satisfaction of this judgment, by sale of the road and other property of the La Crosse Company, as for brevity the corporation was usually styled, Cleveland filed his bill in the District Court of the United States for the District of Wisconsin, against that company and Chamberlain, with whom were joined some other defendants.

In this bill, according to the account given of it by the complainants in the present cases, Cleveland insisted that the lease to Chamberlain and the judgment confessed in his favor were without consideration and in fraud of creditors, and that they hindered the collection of his judgment, and he prayed that they might be declared void. The La Crosse Company and Chamberlain answered, denying all fraud, and Cleveland took issue by replication.

The court found against the respondents, and at January Term, 1859, decreed that the articles of agreement between the La Crosse Company and Chamberlain 'be and hereby are vacated, annulled, and made void, so that the same shall not be of any force and effect whatever,' and that 'the judgment and all executions and proceedings thereon be and hereby are vacated, annulled, made void, and set aside, so that the same shall have no effect whatever.' The decree also 'perpetually enjoined and restrained' Chamberlain from 'controlling or meddling with the railroad or anything belonging to it under the articles of agreement.'

In 1860, a company-called for brevity the Minnesota Company succeeded, through a purchase, and through a subsequent organization, such as is allowed by the statutes of Wisconsin, as a railroad company, in order to take and manage the property acquired by the purchase, to all the property, franchises, and rights of the La Crosse Company; subject, however, to prior incumbrances.

This Minnesota Company being thus interested in the matter, alleged by their bill below (the first of the two cases now under review), that by this decree the agreement and the confessed judgment were made absolutely void, not only against Cleveland, the judgment creditor, but also as between Chamberlain and the La Crosse Company, and that Chamberlain, notwithstanding this decree, having purchased the Cleveland judgment, remained in possession of the road, receiving large sums of money, amounting altogether to more than $200,000, for which he was bound to account. They prayed, therefore, that Chamberlain might be ordered to apply to the payment of the Cleveland judgment, from the money so received, a sum sufficient for that purpose; that he might be ordered to account; that he might be credited with the sum applied to the Cleveland judgment; that the balance be ascertained; that the Cleveland judgment be ordered to be cancelled; and that the ascertained balance, if against Chamberlain, be paid to the Minnesota Company, or, if in his favor, by the Minnesota Company to him. They also prayed further relief.

The bill of Scott & Graham-the second of the two bills below and now here for review-was, as already signified, essentially like the first, that of the Minnesota Company. Like it, it did not seek specifically to set aside Chamberlain's lease; but while prominently making its alleged frandulent nature inducement in this case, went on the assumption that the lease and judgment were already vacated as to everybody and for all purposes by the decree of January, 1859. The bill, however, in this second case, did allege, also, that the lease was ultra vires, and void, therefore, on its face; as also void, because, by its terms, hindering creditors; but its general tenor was, as already mentioned; and as in the first bill the Minnesota Company asked that the fund arising from the working of the road should be applied in satisfaction of the Cleveland judgment, for an account, &c., so the only prayer of Graham & Scott was that the same money might be applied in payment of their debt.

The essential question in both cases, therefore, considered by the court, was this: whether the lease made to Chamberlain, and the judgment confessed in his favor by the La Crosse Company, in 1857, was annulled as between the parties to the lease and judgment, by the decree of the District Court of the United States for the District of Wisconsin, at the January Term, 1859, or only as against Cleveland, the judgment creditor, in whose suit against the company and Chamberlain the decree was rendered?

The court, it may here be said, had been informed by the counsel for the Minnesota Company and for Graham & Scott, as well as by the counsel for Chamberlain, that there was now pending in the Circuit Court of the United States for the District of Wisconsin a suit, brought by the company against Chamberlain, for the specific purpose of setting aside the contract between Chamberlain and the La Crosse Company.

Messrs. Carpenter and Cushing, for the appellant: The decree was not one merely postopening the lease and judgment of Chamberlain as to other creditors, but one which annulled the lease and vacated the judgment. The language of it is of that kind, in regard to which it is impossible to attempt to give it strength; as impossible as to prove an axiom; or to reason into force a seal plainly set upon a bond. No illustration can make the decree plainer; for no language can be more specific, complete, or absolute, than that of the decree itself. When a lease is 'vacated, annulled, and made void, so that the same shall not hereafter be of any force or effect whatever; and the lessee is perpetually enjoined and restrained' from claiming or doing anything under or by virtue of the lease; can anything more be done to complete its destruction? When a judgment is 'vacated, annulled, made void, set aside, so that the same shall have no further effect whatever,' can it be asserted that the judgment is good as between the parties to it, and remains a lien upon the debtor's property against all the world, except one? If this lease and judgment have any existence after the sweeping decree above quoted, then it is not in the power of any court to destroy either of them. By nothing, in short, but by violence upon language, can this decree be read otherwise than as it is written,-a clear, complete, absolute annihilation of both lease and judgment, to all intents and purposes, and as to all persons and parties.

But three parties, it will be remembered, were before the court.

1. Cleveland, a judgment creditor.

2. The Railroad Company.

3. Chamberlain.

It is certain Chamberlain could not thereafter manage the road under his lease, for he was 'perpetually enjoined and restrained.' The decree did not authorize Cleveland to work it, or in any way interfere with it, by appointing a receiver or otherwise. Who was to work it? Manifestly the railroad company and no one else. In the nature of things, the court must have intended that the company should resume control of the road after Chamberlain was enjoined. The court could not have intended that a great public enterprise like the one in question should be abandoned, its franchises become forfeited, and creditors, and everybody else connected with it, be ruined outright. It is impossible to say that this decree did not change the relations of Chamberlain and the company, inter se, as to this great property. It bound Chamberlain hand and foot, not for a time, nor for a purpose, but absolutely, perpetually, forever. It manifestly proceeded upon the ground, that the lease was an unauthorized act of the company, ultra vires, void as between the parties, and as between the parties and the public; and so it extirpated the lease, trampled it under foot and out of existence. It was no longer to be any protection to Chamberlain in his usurpation of great corporate franchises; no longer to protect the company in its evasion of its duty to work this road itself. And the moment the decree was enrolled, it became the right and the duty of the company to resume its abdicated franchises, and exercise them for the public benefit, according to its charter obligations to the State, and neither Chamberlain nor any one else could interfere.

It is the boast of a court of equity, that it does complete justice, and not by halves; that its decrees not only settle rights as between plaintiff and defendants, but as between the defendants themselves. The reason given for making all persons interested in the subject-matter parties defendant is, that the court may by one decree accomplish what would otherwise require many suits, and may at once adjust the rights of all parties interested. This its decrees would not do, if they were not as binding among defendants in subsequent litigation, between themselves, as between the plaintiff and the defendants. Cases establish this quality of decrees in equity. Farquharson v. Seaton is a strong authority to show that this decree would be conclusive in any subsequent litigation upon the subject between Chamberlain and the company. So is Chamley v. Lord Dunsany, in Irish chancery; a case decided by Lord Redesdale, as able a chancellor as ever sat.

The counsel also argued extensively on a comparison of the charter-powers of the La Crosse Company, which were exhibited in the record, with those exercised in the lease to Chamberlain, also shown, that the lease made by the company was beyond their charter-powers, and was void as ultra vires; that it was void, therefore, absolutely and irrespective of intent. They argued also that independently of this, it and the judgment were, in fact, made to defraud creditors, and that both were void on that score also.

After full argument by Messrs. Cary and Carlisle, contra--

The CHIEF JUSTICE delivered the opinion of the court.


text: Talk:Minnesota Company v. Chamberlain Graham Scott


text:
Minnesota Company v. Chamberlain Graham Scott/Opinion of the Court

These two appeals present the same controlling question to be decided upon the same facts and principles. That question is, Were the lease made to Chamberlain and the judgment confessed in his favor by the La Crosse Company, annulled as between the parties to the lease and judgment by the decree of 1859, or only as against Cleveland, the judgment creditor, in whose suit against the company and Chamberlain the decree was rendered? It was the manifest intention of the Minnesota Company, in the bill filed by it, as the pleadings show, to seek a decree in this suit only upon hypothesis of the nullity of the Cleveland judgment, and the prayer for particular relief was framed accordingly. We are also informed by counsel that there is now pending in the Circuit Court of the United States for the District of Wisconsin, a suit, brought by the company against Chamberlain, for the direct object of setting aside the contract between Chamberlain and the La Crosse Company. In disposing of the cause before us, therefore, we shall not inquire whether that contract was or was not one which the La Crosse Company could legally make, nor whether the contract and the judgment were or were not in law void absolutely or as against creditors only. These matters may be better and more regularly investigated and passed upon in the cause now before the Circuit Court, and, if necessary, upon appeal from the decree in that cause. At present we shall only inquire into the effect of the decree of the District Court upon the article of agreement and the judgment which it declared to be void.

We have seen already that, according to the allegation of the Minnesota Company in their bill now before us, the issue between Cleveland, the complainant, and the La Crosse Company and Chamberlain, the respondents in the cause in which that decree was made, was upon the question whether the agreement and judgment were or were not void as against Cleveland and his judgment. The decree was evidently intended to determine that issue. It was, as evidently, not intended to determine the question whether the making of the agreement was beyond the corporate powers of the La Crosse Company, for there are no terms which affirm its inherent invalidity without regard to intent. It is our duty to construe the decree with reference to the issue it was meant to decide. Its words are very broad and very emphatic; but we cannot say that they were intended by the District Court to have any greater effect than to avoid and set aside, as against Cleveland, the agreement and the judgment impeached by his bill. We think, on the contrary, that a decree having such an effect could not have been properly rendered upon the pleadings and issue in that cause. Neither the La Crosse Company nor Chamberlain sought to avoid the agreement or the judgment, nor asked any relief whatever as against each other. Indeed, the case shows that both regarded the agreement and the judgment as essential to their respective interests. We cannot ascribe to any court an intention, by a decree on such pleadings, to annul such an arrangement as between the parties to it, nor could we approve such action even were the intent clear beyond question. No question was made between Chamberlain and the La Crosse Company, nor could any question arise between them of any such nature as that between those parties and Cleveland, nor could they be required, in a suit prosecuted by Cleveland to enforce satisfaction of his judgment by setting aside their arrangement as void against creditors, to submit that arrangement, as between themselves, to the action of the court.

It is true that it is the constant practice of courts of equity to decree between codefendants upon proper proofs, and under pleadings between plaintiffs and defendants, which bring the respective claims and rights of such codefendants between themselves under judicial cognizance. In the case of Farquharson v. Seton, cited by counsel, the pleadings showed that Farquharson, as a co-defendant with Seton in another suit, had, by answer, set up the same case against him that he afterward set up by bill. In the former suit the decree had been against Farquharson, and he afterward sought to renew the litigation by an original proceeding, and it was held properly that the former decree, though between codefendants, was a bar. So in the case of Chamley v. Lord Dunsany, the general litigation was for the settling and marshaling of incumbrances, and it was held that where a case was made out between defendants, by evidence arising from pleadings and proofs between plaintiffs and defendants, a court of equity was entitled to make a decree between the defendants. In this case the decree was between defendants who asserted adverse interests in the incumbered estate. But neither of these cases assert the doctrine maintained here for the appellants, that a court of equity may decree between defendants when neither pleadings nor proofs show any controversy or adverse interest between them. Nor have we been referred to any case which does assert that doctrine.

We think, therefore, that the decree of the District Court in the case of Cleveland against the La Crosse Company and Chamberlain must be regarded as having made void the arrangement between the company and Chamberlain only as against the judgment creditor, Cleveland, and not as having determined anything between those parties.

Nor do we intend here to determine anything as between them. We leave all questions concerning the validity of Chamberlain's judgment and its lien on the railroad, or touching the validity of the articles of agreement between Chamberlain and the La Crosse Company, or relating to the rights of parties in or to Chamberlain's receipts under that agreement, to be investigated and determined in the suit now pending in the Circuit Court.

Nor do we understand the decrees dismissing the bills in the two cases before us as determining anything on either of these points, but only as determining that the Cleveland decree adjudged nothing between Chamberlain and the La Crosse Company, and, therefore, cannot be regarded as evidence of the annulment of the contract between them in another suit where the validity of the contract is directly in controversy.

In the second of the cases before us, that of Graham and Scott v. Chamberlain and The La Crosse Company, there are averments in the bill which would require an answer if the general structure and the special prayer of the bill and the absence of a general prayer did not show that in this case, as in the case of the Minnesota Company, the real object of the suit was to establish the Cleveland decree as an absolute bar to the assertion by Chamberlain of any right whatever under his agreement and judgment. We do not think it such a bar, and therefore, without prejudice to any suit which is now pending, or may be hereafter brought, to determine any other controversy of the La Crosse Company, or of its creditors, or of its successors in right or interest, we shall affirm the decrees of the Circuit Court in the two cases now before us by appeal.

AFFIRMANCE ACCORDINGLY.


text: Talk:Minnesota Company v. Chamberlain Graham Scott/Opinion of the Court


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Gilman v. Philadelphia

THE Constitution gives to Congress power to 'regulate commerce between the States;' and this case was one relating to the respective jurisdiction of a State and of the United States over tide and navigable waters. The case was thus:

The city of Philadelphia, as originally laid out by Mr. Penn, was situated between the Delaware and Schuylkill Rivers; the former a wide river, on the east of the city; the latter a small and narrow stream, on the west, which, making a curve below the city, falls into the far larger water, about six miles below the town.

This river Schuylkill is tidal from its mouth, seven and a half miles upwards-that is to say, completely past every part of the rear of the city-and though narrow, muddy, and shallow, is navigable for vessels drawing from eighteen to twenty feet of water. It is wholly within the State of Pennsylvania. No large vessels of any kind are seen upon it. Being one outlet of the coal regions of Pennsylvania, the principal, almost the sole commerce of the river is coal. But this is a very large commerce, and one of importance to this country generally. Great numbers of persons, from many States, are engaged in it; and many small steamers, barges, and other vessels concerned in it, are properly enrolled and licensed as vessels of the United States. Millions of dollars have been invested in property on the Schuylkill front of the built city, meant to assist the coal trade. The coal above spoken of as the subject of this river's commerce, is brought by canal-boats into the river, just at or above Philadelphia. The canal-boats are then towed by small steam-tugs along the river.

So important, indeed, was this trade, in connection with the Schuylkill, considered in 1853, that in that year or thereabouts, when the legislature of the State proposed to allow the Penrose Ferry bridge-a bridge some distance below any ever previously erected, and over deeper and broader parts of the stream-the city of Philadelphia, by its councils, then largely, perhaps, influenced by traders in a great staple of the city, remonstrated against any legislative license for the new means of crossing; declaring that, by 'this dangerous obstruction, trade amounting to more than a million of tons annually would be seriously impaired, and driven from that portion of the port; and that the large investments of the city in her gas-works, and other property on the Schuylkill, and a large proportion of all the wharffront, would be greatly injured by any further bridge below Gray's Ferry, now the lowest bridge upon the Schuylkill.' The bridge, however, was authorized.

The space from river to river-the width of the neck of land, that is to say, on which 'Philadelphia' stands-may be about two miles.

Notwithstanding, however, the separating river, residents of Philadelphia, more than fifty years ago, had their rural homes on the west side of the Schuylkill. Here was Lansdowne, the Woodlands, and Belmont, and Solitude; well-known places in the local history of Philadelphia. Little villages, also, Mantuaville, Hamiltonville, &c., grew up there. From necessity, the great roads from the interior, including that from the State capital, came to the city in this direction. Still the region was without the city limits.

In 1854, the old charter of Philadelphia was abrogated. 'Consolidation' was thought advisable. What had been the county of Philadelphia was made the city, and the region west of the Schuylkill was placed under the same government completely as the region east. Lighting, paying, police, penny-postage, and such like things as had before belonged to the 'city,' now were imparted to the new region. Mantuaville, Hamiltonville, &c., became forgotten titles; and 'West Philadelphia' usurped, in common talk, their place. The streets running from east to west, in 'Philadelphia,' were carried, by name, and continuous line of survey, so far as practicable, west of the Schuylkill; and the numbers which, beginning in the old city on the Delaware with Front Street, and running westward to the Schuylkill, in progressive numbers up to Thirtieth, reappeared across the river in Thirty-first Street, running to a number not yet practically familiar to the citizens. From its cheaper ground and fresher air, in connection with street cars found west of the river as east, 'West Philadelphia'-a sort, as yet, of urbs in rure, or rus in urbe-had become a residence for many hundreds of persons who passed more or less of every day in the walks of business in the older parts of the town.

So too of later years, the citizens had laid out various cemeteries, the Woodlands and others, on the western side of the river; and had here fixed numerous institutions closely connected with the city corporation, itself, or with churches, &c., in the city; the vast Blockley Hospital, the Burd Orphan Asylum, Christ Church Hospital, and other like establishments of charity.

From an early date the river at and just above and below the city, that is to say within its tidal and navigable parts, had been treated by the State of Pennsylvania as more or less within her jurisdiction.

Thus in 1798, what was then called the Permanent Bridge, a bridge across the river at Market Street, was authorized, and in 1799 a lot granted by the State for its purposes. This bridge was begun in 1801 and finished in 1805, Judge Peters, the district judge of the Federal court of Pennsylvania, himself distinguished as an admiralty lawyer, who was the proprietor of Belmont, near one end of it, having been chiefly instrumental in the erection. In 1806, a bridge at Gray's Ferry (permanent) was authorized; 75 feet high. In the same year the State regulated 'the upper and lower ferries' opposite the city. In 1811 another bridge was authorized, at the upper ferry, which was afterward built, burnt down, and rebuilt. In 1815 a large canal, the Schuylkill Navigation Company, was authorized, which drains the river immediately above the city. It was completed in 1826. In 1822 the Fairmount Water-works, which dam the river and supply the old city of Philadelphia with water out of the river, were completed. In 1837 a bridge was authorized to be built by the Philadelphia, Wilmington, and Baltimore Railroad Company, with a draw of 33 feet, and was afterwards built below the town. In 1838 the West Philadelphia Railroad Company was authorized to build a bridge at Market or Callowhill Street. In 1839 a free bridge was authorized at Arch Street. In 1852 free bridges were authorized at Chestnut Street and at Girard Avenue. None of these last four bridges were ever built.

Over one of these bridges runs the great Central Railroad of Pennsylvania; and over another, below the built city, the Gray's Ferry bridge already mentioned, runs the railway from Philadelphia to Baltimore, which leads from the North to Washington City and the South. This railroad bridge-which has a draw, however-was built in 1838; though a draw-bridge had been there from a time long before the Revolution.

The right of the State to authorize these bridges had not been seriously questioned by any one, while undoubtedly the river from its mouth to and beyond the port of Philadelphia is and has been considered as an ancient, navigable, public river and common highway, free to be used and navigated by all citizens of the United States.

The only legislation, apparently, which Congress had made about the river was in 1789 and in 1790, in both which years Philadelphia was declared a port of entry; in 1793, when the coasting laws were applied to it; in 1799, when two districts were created in Pennsylvania; in 1822, when Philadelphia was made the sole port of entry for the Philadelphia district; and in 1834, when the limits of the port were enlarged on the Delaware front. The important acts seemed to be those of 1799 and 1834. The former is in these words:

'The district of Philadelphia shall include all the shores and waters of the River Delaware, and the rivers and waters connected therewith lying within the State of Pennsylvania; and the City of Philadelphia shall be the sole port of entry and delivery of the same.'

The subsequent act (that of 1834) thus reads:

'The port of entry and delivery for the district of Philadelphia shall be bounded by the Navy Yard on the south, and Gunner's Run on the north, anything in any former law to the contrary notwithstanding.'

No act spoke of the Schuylkill as within the port: though undoubtedly by its charter the city extended to the Schuylkill. The soundings of the Coast Survey, authorized by the United States, do not come into the Schuylkill.

The 'Navy Yard' is on the Delaware. 'Gunner's Run' was a stream in the north of the city, falling into the Delaware; but nowhere touching or feeding the Schuylkill.

Notwithstanding, however, the numerous bridges authorized by the State and the two or three that had been built, but one principal connection existed practically, between the two parts of the built and populous city; and this was the old Permanent or Market Street Bridge: a bridge running from the western end of one great east and west thoroughfare of the city-perhaps the greatest across the stream; and connecting West Philadelphia with the more populous 'city' as a short and narrow isthmus might connect two continents. There was, indeed, the Wire or Suspension Bridge, at Fairmount; rather above the city at its north extremity; and Gray's Ferry, sometimes called Baltimore Railroad Bridge, at its southern end, and below the populous districts. But, as already said, the old bridge was the great line of transit-artery and ligament at once-between the districts.

In this state of things, not much set out in the pleadings, but being matters of common notoriety, and as such spoken of at the bar, the Commonwealth of Pennsylvania in 1857 authorized the City of Philadelphia to erect a permanent bridge over the Schuylkill at Chestnut Street. This street was about five hundred feet below Market Street, where was the other and older bridge. The contemplated erection would be, of course, over a part of the Schuylkill that was tidal wholly, and navigable. Chestnut Street now had an existence on both sides of the river. On the eastern, it is one of the chief thoroughfares of Philadelphia, and in West Philadelphia, in anticipation of connection with Chestnut Street on the east, was daily assuming importance. The contemplated bridge would in fact connect parts of one street, municipally speaking; a street having one part on the east and one part on the west of the stream; here about four hundred feet across.

The city being about to begin the erection, Gilman, of New Hampshire, owning valuable coal wharves on the west side of the river, just below the old bridge, and which by the erection of the proposed bridge at Chestnut Street would be shut up between the two erections, now filed his bill in the Circuit Court for Pennsylvania to prevent the structure. It was conceded that he was neither a navigator nor a pilot, nor the owner of a licensed coasting vessel; and this was objected to him. His title to ask relief rested on his ownership of coal wharves, as mentioned, and his citizenship in New Hampshire.

His bill charged that a bridge at that point without suitable draws would be an unlawful obstruction to the navigation of the river, and an illegal interference with his rights, and was a public nuisance producing to him a special damage; that it was not competent for the legislature of Pennsylvania to sanction such an erection, and that he was entitled to be protected by an injunction to stay further progress on the work, or to a decree of abatement, if it should have been proceeded with to completion.

The answer admitted the erection of the bridge complained of, justified such erection under the act of the legislature of Pennsylvania, and alleged that other obstructions of a similar or greater extent had theretofore been placed across the stream at a higher point of the river, or beyond the complainant's wharves, by virtue of other acts of the same legislature. The answer conceded that the bridge would prevent masted vessels from approaching to or unloading at the complainant's wharves, and insisted that this was the only injury suffered by the complainant, and that for it the City of Philadelphia, the defendant, was able to respond in damages. The answer further alleged that the proposed bridge was a necessity for public convenience.

The bridge, it was admitted, would be not more than thirty feet high-the same height as the old one above, at Market Street. Being an erection of the city it was built in the best style of science, and with the greatest practicable regard to the navigation and general interests of commerce; but it necessarily somewhat impeded navigation. The navigation at that point required a wide channel. One pier was indispensable. Vessels with masts could not pass, and the property of the complainant was rendered less valuable.

Mr. Justice Grier dismissed the bill. The same question nearly had been then recently considered by him very fully, in an application made, in New Jersey, to restrain the erection of a railroad bridge over the Passaic, at Newark. The matter had been there fully argued and deliberately considered; an opinion being delivered from the bench, dismissing the appeal. That decree had, by the judgment. of this court, been affirmed; though the case was not reported, the judgment of affirmance having been by an equally divided bench. His honor, in accordance with what was declared in Queen v. Willis, considering that an affirmance of a decree was binding irrespective of the number of judges who were in favor of such judgment; and that the obligation, in point of mere precedent, was the same, whether the court was full and unanimous, or partial and divided, hardly conceived the question open for discussion before him. The case was, therefore, not argued below.

In this court it was elaborately and well discussed by Messrs. George Harding and Courtland Parker, for the appellant Gilman; and by Messrs. F. C. Brewster and D. W. Sellers, contra, for the City of Philadelphia.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Gilman v. Philadelphia


text: Talk:Gilman v. Philadelphia

title: Talk:Gilman v. Philadelphia