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United States v. Mora/Opinion of the Court

We think the judgment in this case should be reversed. The objection that the bond does not correspond with the form prescribed by the second section of the act of May 20, 1862 (12 Stat. 404), does not meet the case. It is supported by the third section, if not by the second, in connection with the treasury circular issued under it May 23, 1862.

To understand the force of the objection and the answer to it, it is necessary to look at the general scope of the act.

The first section authorized the Secretary of the Treasury to refuse a clearance to any vessel or other vehicle laden with goods destined for a foreign or domestic port, whenever he should have satisfactory reason to believe that any of the goods, whatever their ostensible destination, were intended for parts or places in the possession or under the control of the insurgents. The second section empowered the collector of customs, in granting a clearance of any vessel for a foreign or domestic port, if he should deem it necessary, under the circumstances of the case, to require a bond from the master or owner of the vessel in a penalty equal to the value of the cargo, that the cargo should be delivered at its destination, and that no part of it should be used to aid any persons in insurrection. This authority given to the collector was independent of any instructions which he might receive from the Secretary, and in no sense conflicted with what the Secretary might do, or require to be done, under the other portions of the act.

The third section gave the Secretary of the Treasury discretionary power to prevent the transportation, in any way, of any goods, whatever their ostensible destination, in all cases where there should be satisfactory reason to believe that they were intended for any place in possession of the insurgents, or that there was imminent danger of their falling into their possession or control; and also power, in all cases where he should deem it expedient, to require reasonable security that the goods should not be transported to any place under insurrectionary control, and should not in any way be used to give aid or comfort to the insurgents; and he was authorized to establish such general regulations as he should deem necessary and proper to carry into effect the purposes of the act.

The first and second sections related more particularly to clearances of vessels; and the third, to goods to be transported in vessels and other vehicles. The security specified in the second section was required to be given by the master or owner of the vessel, and, as already stated, was to be taken at the discretion of the collector, without further instructions on the subject. The security specified in the third section was not limited to any particular penalty, and it was not stated by whom it should be given. It was to be reasonable security, and would, as a matter of course, have to be furnished by the person who should desire to have the goods transported.

By virtue of the powers conferred by the third section, the Secretary of the Treasury issued instructions to the collector of New York to refuse clearances to all vessels (whatever their ostensible destination) which were believed by him, on satisfactory grounds, to be intended for ports or places in possession or under control of the insurgents; or where there was imminent danger that the goods laden therein should fall into the possession or under the control of the insurgents; and in all cases where, in his judgment, there was ground of apprehension that any goods shipped would be used in any way for the aid of the insurgents, the collector was directed to require substantial security that such goods should not be transported to any place under insurrectionary control, and should not in any way be used to give aid or comfort to the insurgents.

It cannot be pretended that the Secretary of the Treasury exceeded his authority in giving these instructions. They are fully authorized by the third section of the act. We are of opinion that the powers given to the collector by these instructions were sufficient to authorize him to take the bond in question. It is in double the value of the goods, and is executed by the shipper and two sureties. It is not shown that this was any thing more than 'reasonable security.' It is conditioned that the vessel in which the goods were laden (which was bound for Matamoras) should proceed to that place, and should land the goods there for consumption; that the same should be consumed in the republic of Mexico; that the shippers should within seven months produce satisfactory proof to the collector, by consular certificate or otherwise, that the same had been landed and entered for consumption, and actually converted to domestic use, within the republic of Mexico, and the duties thereon paid; that all laws and departmental regulations should be strictly obeyed; that all the conditions of the clearance of said merchandise should be performed; and, specially, that no part of said merchandise should be transported to any place under insurrectionary control, and that none of it should be used in any way, with the consent or knowledge of the shippers or their agents, to give aid or comfort to parties then in rebellion against the United States.

Now, although the condition of the bond is an amplification of the condition prescribed in the instructions of the Secretary, yet the amplification is in line with, and intended more effectually to secure the performance of, the condition prescribed. The instructions authorized the collector to stop the vessel and the goods from clearing at all, if he believed, on satisfactory ground, that the latter were intended for places in the possession of the insurgents, or that there was imminent danger of their falling into their hands. Now, though he might have grounds deemed by him satisfactory for believing that the goods were intended for the use of the insurgents, yet, on assurances given by the shipper that they were really and truly intended for consumption in Mexico, he might be willing to let them go forward, if the shipper would give security that they should be landed and used in Mexico, and should not, with his consent or allowance, or that of his agents, be used to give aid and comfort to the insurgents. This is substantially what the condition of the bond amounts to. And it cannot be denied that it is in general conformity with the purpose and object intended to be secured by the act and the instructions of the Secretary. This purpose and this object were to prevent vessels and goods whose destination was suspicious from getting into the hands of the insurgents. To effect this object, power was given to the Secretary, and by his instructions like power was given to the collector, to refuse a clearance to a vessel or goods absolutely, where there was good ground to believe that they were really destined for the use of the insurgents.

Now, under certain circumstances, specified in the second section of the act, the collector had authority to take a certain bond, without being instructed thereto by the Secretary of the Treasury. By virtue of instructions given by the Secretary under the third section, the collector had authority, and was required, to take a certain other bond; and he was further authorized to refuse a clearance altogether. Under this last power of refusing a clearance, what was there to prevent him, or to make it unlawful for him, to take such a bond as was given in this case, if the owner of the goods chose to enter into it for the purpose of inducing the collector to grant the clearance? It only requires what the law sought to secure. If the shipper chose to give the bond in order to get his goods cleared, it was a voluntary act on his part; and what ground has he or his sureties to complain? The only complaint they could make, if they could make any, was, that the circumstances did not exist which would have justified the collector in refusing a clearance, and that the taking of the bond was, therefore, an act of duress. But this the defendant did not attempt to prove. He put himslef at the trial on the sheer ground that the collector had no right to take such a bond at all as the one in question. But the right to take the bond, so far as the shipper and his sureties are concerned, was included in the greater right to refuse the clearance altogether. And the bond itself, duly executed by them, is prima facie evidence that it was voluntarily entered into. United States v. Bradley, 10 Pe. 343.

The government, however, did not rest upon the bond alone, but offered to prove that the goods were not landed at Matamoras, according to their destination; but that, after the vessel arrived in the mouth of the Rio Grande, they were, with the consent and knowledge of the shipper's agents, actually sold to the military authorities of the Confederate States. This would have been strong presumptive evidence (if any evidence were needed on the subject) that the collector had satisfactory ground of belief that the goods were intended for the use of the insurgents; and that although, as between him and the government, he may have exercised too great indulgence to the shipper in taking the bond and letting the goods go forward, yet that the shipper and his sureties had no ground of complaint on that score.

Our opinion is, that, considering the powers which were conferred upon the collector by virtue of the instructions issued by the Secretary of the Treasury under the third section of the act, he had authority to take such a bond as that which is the subject to this suit.

But even if the first condition of the bond, which required the goods to be consumed in the republic of Mexico, were not sustainable, the latter condition, which provided that no part of the goods should be transported to any place under insurrectionary control, and that none of them should be used in any way, with the consent or allowance of the shippers or their agents, to give aid or comfort to parties in rebellion against the United States, is in exact conformity with the instructions, and is severable from the fest. On the authority of United States v. Hodson (10 Wall. 395), and the cases there relied on, the bond would be good pro tanto; and as the evidence offered by the government tended to show a breach of this condition, which is free from objection, it should have been received.

In either aspect of the case, therefore, whether we consider the bond as in general conformity with the object of the act, and voluntarily given by the shipper to obtain a clearance of his goods, or whether we consider it as strictly conformable to the instructions issued under the third section, with only a superadded condition, which may be disregarded, the court below was in error in rejecting the evidence offered by the plaintiff, and directing a verdict for the defendant.

We think the case is covered by the decision in United States v. Hodson, and other cases of recent consideration which might be referred to.

The judgment of the Circuit Court will be reversed, and the cause remanded for a new trial; and it is

So ordered.


text: Talk:United States v. Mora/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Kendig v. Dean

APPEAL from the Circuit Court of the United States for the Western District of Tennessee.

The facts are stated in the opinion of the court.

The cause was argued by Mr. Philip Phillips for the appellant, and by Mr. H. T. Ellett for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Kendig v. Dean


text: Talk:Kendig v. Dean

title: Talk:Kendig v. Dean


text:
Kendig v. Dean/Opinion of the Court

This suit was brought against Dean, a citizen of Ohio, by Kendig, a citizen of Tennessee. The controversy related to one hundred and eighty-four shares of the stock of the Memphis Gas-right Company, a corporation created by the latter State. The company was not made a party to the suit. A demurrer to the bill was overruled; and the court, upon a final hearing on the bill, answer, exhibits, and depositions, dismissed the bill. Kendig thereupon appealed here.

We are of opinion that the Circuit Court had no jurisdiction to try the case, because the gas-light company was an indispensable party to the relief sought in the bill, or to any relief which a court of equity could give.

The substance of the bill is that the complainant was the owner of the shares in question, and that while he so owned and held them, and during the late civil war, the defendant 'obtained possession of the books and control of the offices of the company, and being so in possession and control, wrongfully and fraudulently procured and obtained to be made a transfer upon the books of the company to his own name as owner, and from the name of your orator, the said one hundred and eighty-four shares of stock, and the issuance to him of a certificate of said stock, and the cancellation of the certificate of his stock belonging to and in the name of your orator.' It is further alleged that this was done without purchase from, or consideration given to, the complainant, and without any lawful authority.

The relief prayed is, 'that the said capital stock may be restored to your orator, and deemed to be of his property; and that all the right and title thereto may be divested out of said Dean, and vested in your orator; and that said Dean may be compelled to cause and authorize the transfer of said stock to be made on the books of the company to your orator, and may be enjoined from making or authorizing to be made a transfer of any of the stock to any other person; and that other suitable relief may be granted to your orator.' The original certificate of stock is in possession of the complainant, as he declares in the bill, and is annexed to it as an exhibit.

It also appears that the corporation, at the time the suit was brought, had a president, a board of directors, and a secretary. This suit is not brought to recover the dividends received by Dean which ought rightfully to have been paid to the complainant. No such relief is asked, and there is no averment that any dividends were declared or paid to Dean on that account. Nor is it brought to recover damages for the wrongful seizure and conversion of the complainant's property to the defendant's use.

The relief appropriate to either of these grievances might have been sought in an action at law. It is not an action to obtain from Dean the specific certificate of stock, for that remains in the complainant's possession.

The gravamen of the charge is that Dean, while in possession of the books and in control of the offices of the company, caused a transfer to be made on its books to him of the shares of its stock owned by the complainant. The relief asked is the restoration of the stock on those books to the name of the complainant, and the future recognition by the company of his rights in the stock. And the court is asked to compel Dean to do this.

Suppose that the court had rendered a decree in the exact language asked for, and Dean should be attached for contempt in refusing to perform it. He could answer very truly that he was not the gas-light company, and had no control of its books or its officers; that he had no means of compelling it to make transfer of this or any other stock on its books; and that it was a corporation governed by its own officers, and was not bound by the decree of the court, and would not perform it. The court would find itself in the position of having made a decree it could not enforce, of attempting to give a relief which was beyond its power, because the party whose action was necessary to that relief was not a party to the suit.

On the other hand, if the company had been a party to the suit, and the complainant had sustained the allegations of his bill by proofs, the company could have been compelled to restore him to the ownership of the stock on its books, and to treat him in future as one of its stockholders, Dean and it would have been bound by the decree. As it is, the specific relief sought is not within the power of the court, nor, in the absence of the company, is any relief within the equity jurisdiction of the court which can arise out of the frame of the bill.

The rules which govern the Circuit Courts of the United States sitting in chancery, in cases like this, have been well defined in Shields v. Barron (17 How. 130) and Barney v. Baltimore City, 6 Wall. 280.

In the latter case, it is said that there is a class of persons who may or may not be made parties to the suit at the discretion of plaintiff, without being noticed by the court. A second class, who, if their interest is brought to the attention of the court, it will, before deciding the cause, require them to be made parties if within its jurisdiction, but who are not so necessary to relief that their absence defeats the jurisdiction. 'And there is a third class,' says the court, 'whose interests in the subject-matter of the suit, and the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases, the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction.' The case before us comes plainly within the language here used. The gas-light company is an indispensable party to the relief sought by this bill.

The Circuit Court, although it dismissed the bill, did so on the merits, and that decree would bar the complainant from any other suit in which Dean's right to this stock might be contested. It should have been dismissed without prejudice, for want of a necessary party who was not brought before the court.

The decree, as in the precisely similar case of Barney v. Baltimore City (supra), and in the more recent case of House et al. v. Mullen (22 Wall. 42), must therefore be reversed, and the cause remanded with directions to dismiss the bill without prejudice; and it is

So ordered.

title: Kendig v. Dean/Opinion of the Court


text: Talk:Kendig v. Dean/Opinion of the Court


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Mimmack v. United States

APPEAL from the Court of Claims.

This was a suit brought Sept. 2, 1873, in the Court of Claims, by Bernard P. Mimmack against the United States, to recover pay and allowances as a captain in the army to that date from Dec. 11, 1868, amounting to $9,344.29. The court found the following facts:--

That in May, 1868, the petitioner, said Mimmack, was a captain of the thirtieth regiment of infantry, and brevet-major, on duty at Fort Sidney, which was under the command of General Potter.

Previous to the 10th of May, charges, with specifications of drunkenness on duty, &c., were preferred against the petitioner; and he then said that, on condition the charges should not be acted upon, he would place his resignation in the hands of General Potter, to be held by him, and not forwarded to the War Department, if he should entirely abstain from the use of intoxicating liquors; and on the 10th of May the petitioner enclosed his resignation to General Potter in a letter, stating that the resignation was without date, and authorizing General Potter to place it in General Augur's hands, to forward to the War Department, should he, the petitioner, ever become intoxicated again. General Potter sent the resignation and letter of the petitioner to General Augur, and informed him of the understanding had with the petitioner, as above stated.

Previous to Oct. 3, 1868, the petitioner having been again intoxicated on duty, and by excessive drunkenness confined to his bed in a state bordering on delirium tremens, General Potter placed him under arrest, and ordered him to turn over the company's property in his hands. By letter, dated Oct. 3, 1868, General Potter informed General Augur that the petitioner had again broke out drinking hard, and that he had placed him under arrest, and ordered him to turn over the company property.

On the 5th of October, General Augur forwarded the petitioner's resignation, with the date filled up 'Oct. 5, 1868,' to the War Department. This date was not filled up by the petitioner, nor was he informed of the communication by General Potter, not of the fact that his resignation was to be forwarded to the War Department.

On the 29th of that month, the resignation was accepted by the President, to take effect from that date, and notice of the acceptance was sent to the petitioner, who received it Nov. 8. It was not shown that the President, at the time of accepting it, had been informed of the manner in which it had been lodged with General Potter, or of the fact that the date had been filled in by a third person, or of any of the circumstances connected with the resignation.

On the 18th of November, the President promoted First-Lieutenant Appleton D. Palmer to be 'captain in the thirtieth regiment of infantry,' 'vice Mimmack, resigned;' and notice thereof was sent by letter to Captain Palmer, of that date, but he was not then commissioned.

On the 8th of December, the name of First-Lieutenant Palmer was placed on the list of nominations made by the President to be sent to the Senate.

On the 11th of December, the President, on the petitioner's application, revoked the acceptance of the resignation, and ordered him to duty, and notice thereof was given to the Secretary of War.

On the 12th of December, a report was made to the President of the facts of the case by the War Department, and on the 24th the report was returned to the Secretary of War by the President for action under the order of Dec. 11.

The report and the direction of the President were referred to the General of the Army, who requested that, before an order was issued, the opinion of the Attorney-General might be obtained as to the legality of the President's revocation of his acceptance of the petitioner's resignation.

On the 30th of December, by the direction of the President, the name of First-Lieutenant Palmer was stricken from the list of nominations made by the President to be sent to the Senate, and the Secretary of War was notified thereof.

On the 4th of January, 1869, the case of the petitioner, with the papers relating thereto, was submitted by the Secretary of War to the Attorney-General, who, on the 4th of February, gave his opinion that the President's revocation of his acceptance of the petitioner's resignation had not the effect of restoring him to his former position in the military service.

On the 13th of February, the opinion of the Attorney-General and the papers containing the President's order were sent to the General of the Army; and he declined to permit his name to be used in promulgating the order, as in his opinion it was illegal, and he was sustained in that by the opinion of the Attorney-General.

On March 11, 1869, President Grant nominated First-Lieutenant Palmer to the Senate to be 'captain, Oct. 29, 1868, vice Mimmack, resigned.' The nomination was not acted upon. By letter of May 4, 1869, he was notified of his promotion by letter.

On the 6th of the following December, the President renominated Lieutenant Palmer to be 'captain, Oct. 29, 1868, vice Mimmack, resigned;' and the Senate, on the 22d of that month, advised and consented to the appointment, agreeably to the nomination.

On the 19th of February, 1869, the petitioner enlisted in the marine corps, and served therein until the 27th of August, when he was transferred to the United States ship 'Lancaster,' and served as clerk, and then secretary to the commanders of squadrons, until May 22, 1872; and in the time specified he received as pay $2,344.09.

On the 2d of November, 1872, the petitioner was appointed a clerk in the Second Auditor's office, and served therein till Aug. 16, 1873, when he was appointed a clerk in the Fourth Auditor's office; and up to June 30, 1874, he had received pay as clerk as aforesaid to the amount of $2,082.49.

The Court of Claims dismissed the petition, and found as a conclusion of law that the revocation by the President of his acceptance of Mimmack's resignation, after notice to him of such acceptance, did not restore the petitioner to his post in the army.

Judgment having been rendered, Mimmack appealed here.

Mr. Albert Pike for the appellant.

Even if it be conceded that Mimmack did actually resign his commission, the President had the power, before the vacancy was filled, to recall or revoke his acceptance of the resignation. Rex v. Mayor of Rippon, 1 Ld. Raym. 563; S.C.. 2 Salk. 433. Montgomery v. United States, 5 Ct. of Cl. 94.

The resignation of a civil officer takes effect when it is received by the appointing power. United States v. Wright, 1 McLean, 509; Gates v. Delaware Co., 12 Iowa, 405; People v. Porter, 6 Cal. 26. But that of a military officer does not take effect until he has received notice of its acceptance. If he leaves his post without such notice, he renders himself liable to the penalties for desertion. 12 Stat. 316.

A prospective resignation is an intention, or at least a promise, to resign, which may be withdrawn before the time fixed; and where no new rights have intervened, it may, with the consent of the accepting party, be withdrawn even after it has been accepted. Biddle v. Willard, 16 Ind. 66. Before the Presedent recalled his acceptance of Mimmack's alleged resignation, a letter of appointment had been sent to Palmer, but no commission was issued. The President's appointing power is only completely exercised when he performs the last act required from him: which is signing the commission, and causing to be thereunto affixed the seal of the United States. Marbury v. Madison, 1 Cranch, 137; United States v. Le Baron, 19 How. 73; United States v. Bank of Arkansas, Hemp. 460. And where a vacancy happens during the recess of the Senate, he can only fill it by granting a commission 'which shall expire at the end of the next session.' The letter of appointment was, therefore, an absolute nullity, conferring on Palmer no rights, and presenting no obstacle to the President's action in revoking his acceptance of a pretended resignation forwarded to him without Mimmack's knowledge.

There is no decided case which affirms that the resignation of an officer in the civil service, after it has been received by the appointing power, cannot, by the consent of the latter, be withdrawn. By the uniform practice of the government, from its origin, his relations to that service, after his resignation has been so withdrawn, remain the same as if it had never been sent. Such is the effect of the revocation of the acceptance of the resignation of an officer in the military or the naval service, if the office be not filled at the time of such revocation.

'The revocation of an order accepting the resignation of an officer of the regular army is not in the nature of a new appointment, and upon such revocation the officer assumes his previous status and relative rank in his arm of the service, subject only to the loss of his pay and allowances for the period during which he was actually out of the service.' Opinions of the Judge-Advocate-General of the Army, Official Record, vol. xix. p. 307; Digest of Opinions, 328; id. (ed. 1866) 210.

When, therefore, President Grant sent the name of Palmer to the Senate, Mimmack was in the service, and he could not be removed therefrom by force of an executive nomination, even if it was sanctioned by the Senate. No officer, in time of peace, can be dismissed from the military service, except pursuant to the sentence of a court-martial. 14 Stat. 92.

There never was any valid tender of a resignation. General Potter held the paper, not as the superior officer of Mimmack, but as his private agent, pro hac vice. Mimmack, five months before, had agreed that it should be forwarded as his resignation, if he should 'ever become intoxicated again.' Intoxication does not involve the forfeiture of an office. The agreement was therefore void,-a mere promise, without consideration; but if it absolutely bound him, his commission of the act, which was the condition precedent on which alone the paper could be sent, should have been established upon a trial, after due notice to him.

The paper was not an escrow; because a deed is such only when its delivery is dependent on something to be done by the person therein named as grantee. If the maker has a right to reclaim it, it is no escrow.

Captain Mimmack having never been out of the service, his place was not lawfully filled by another, and he is entitled to his pay and allowances, for which this suit was brought.

The Attorney-General, contra.

1. The contingency having happened upon which, by the express authority of Mimmack, his resignation in writing was to be forwarded, its transmission to the War Department was, in law, his own voluntary act.

2. On his receiving through the appropriate channel a notice of the President's acceptance of that resignation, his connection with the military service of the United States terminated, and the right of Palmer to promotion at once accrued.

3. The President's subsequent attempted revocation of his acceptance could not defeat that right, nor work Mimmack's restoration. Dubarry's Case, 4 Op. Att'y-Gen. 124; Whitney's Case, id. 277; Kendall's Case, id. 306; Downing's Case, 7 id. 99. The latter result could only be accomplished by an appointment by the President, by and with the advice and consent of the Senate.

4. The appointment by the President and Senate of Palmer as captain, vice Mimmack, resigned, would seem of itself to be conclusive as to the status of the latter. At all events, in this suit their action cannot be set aside, nor can his claim to the captaincy be asserted adversely to the right of another, who holds the commission.

5. That action, if subject to judicial review, must be declared unlawful and void, and Mimmack's title established in a direct proceeding, before a suit for the pay and emoluments of the office can be maintained.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Mimmack v. United States


text: Talk:Mimmack v. United States

title: Talk:Mimmack v. United States


text:
Mimmack v. United States/Opinion of the Court

Nothing short of a written resignation to the President, or the proper executive department, by a commissioned officer of the army, navy, or marine corps, and the acceptance of the same duly notified to the incumbent of the office, in the customary mode, will of itself create a vacancy in such an office, or prevent the incumbent, if the President consents, from withdrawing the proposed resignation; in which event the rights, privileges, duties, and obligations of the officer remain just as if the resignation had never been tendered.

Prior to notice that the resignation tendered has been accepted by the President, the officer in such a case may not without leave quit his post or proper duties, nor is he deprived of any of the rights or privileges conferred and enjoyed by virtue of his appointment and commission.

Charges, with specifications of drunkenness on duty, were made to Brevet-Brigadier-General J. H. Potter, commanding Fort Sedgwick, against the petitioner; and the record shows that the petitioner proposed to that officer that, on condition that the charges should not be prosecuted, he, the petitioner, would place his resignation as captain and brevet-major in the hands of the officer to whom the charges were preferred, to be held by him and not to be forwarded to the War Department if he, the accused, should thereafter entirely abstain from the use of intoxicating liquors; and that on the 10th of May, 1868, the petitioner enclosed his resignation, addressed to the adjutant-general of the army, in a letter to the officer commanding Fort Sedgwick, stating that the resignation was without date, and authorizing the party to whom the letter was addressed to place the resignation in the hands of the department commander, to be forwarded to the War Department should he, the petitioner, ever again become intoxicated.

Pursuant to the request of the letter and the authority it conferred, both the letter and the resignation of the petitioner were forwarded to the commander of the department, who was fully informed of the purpose for which the documents were forwarded.

Previous to October in the same year, the petitioner again became intoxicated on duty, and was by such continued excesses confined to his bed in a state bordering on delirium tremens, in consequence of which the commander at Fort Sedgwick placed him under arrest, and ordered him to turn over the property of the company in his hands, as therein directed. Due notice that the petitioner had again 'broke out hard drinking,' and that he had been placed under arrest and ordered to hand over the company property, was given to the department commander on the same day. Two days later, the department commander forwarded the resignation of the petitioner, with the date filled up, Oct. 5, 1868, to the War Department; but the finding of the court below shows that the date of the resignation was not filled up by the petitioner, nor was he informed of the communication sent to the department commander, nor of the fact that his resignation was to be forwarded to the War Department. On the 29th of the same month, the resignation of the petitioner was accepted by the President, and notice to the petitioner of that date of such acceptance was duly forwarded, which, as the findings of the subordinate court show, was received by him on the 8th of November following.

By those proceedings it was at the time supposed that a vacancy was created, and ten days subsequently the President promoted First-Lieutenant Appleton D. Palmer to be captain in the thirtieth regiment of infantry, vice Bernard P. Mimmack, resigned, and notice thereof was sent by letter to the appointee of that date, but he was not then commissioned. On the 11th of December following, the President, on the application of the petitioner, revoked his acceptance of the resignation of the petitioner, and ordered him to duty, and notice thereof was given to the Secretary of War.

Proofs having been taken, the parties were heard; and the court rendered judgment that the petition should be dismissed, the conclusion of law adopted being that the revocation by the President of his acceptance of the petitioner's resignation, after due notice to the petitioner of such acceptance, did not restore the petitioner to the army. From which judgment the petitioner appealed to this court.

Full pay and allowances are claimed by the petitioner from the 11th of December, 1868, to the date of the judgment, amounting to the sum of $9,344.29, as appears by the statement of his account annexed to his petition.

Three principal errors are assigned: 1. That the court erred in holding that the revocation by the President of his acceptance of the supposed resignation of the petitioner, after the petitioner was notified of such acceptance, did not restore him to the army. 2. That the court erred in holding that the petitioner did in fact resign his office as captain in the army, and that the writing signed by him and shown in the record was in law and fact his resignation. 3. That the court erred in holding that by the said paper coming to the hands of the President and his acceptance of it as a resignation, and notice of such acceptance to the petitioner, he ceased in law to be an officer in the army of the United States.

Attempt is made to support these several propositions by the facts exhibited in the findings of the court below, in addition to those already reproduced, from which the petitioner insists that the court here may decide that the petitioner never resigned his commission, and that the office he held under it never became vacant.

On the next day after the President revoked his acceptance of the resignation of the petitioner, a report of the facts of the case was made to the President by the War Department; and on the 24th of the same month the report was returned by the President to the Secretary of War, for action under the prior order of the President, when the report and the direction of the President were referred to the General of the Army. Due consideration having been given to the matters so referred to him, the General of the Army requested that before an order was issued the opinion of the Attorney-General might be obtained as to the legality of the President's revocation of his acceptance of the petitioner's resignation.

On the 13th of the same month, the name of Appleton D. Palmer, previously placed on the list of nominations as first lieutenant, was, by the direction of the President, stricken from the list of nominations to be sent to the Senate, and the Secretary of War was duly notified of that fact.

Pursuant to the request of the General of the Army, the case of the petitioner, with the papers relating thereto, were, on the 4th of the succeeding month, submitted by the Secretary of War to the Attorney-General, who subsequently gave it as his opinion that the President's revocation of his acceptance of the petitioner's resignation did not have the effect of restoring him to his former position in the military service. Mimmack's Case, 12 Op. Att'y-Gen. 555.

Without much delay, the opinion of the Attorney-General and the papers containing the order of the President were sent to the General of the Army, and he declined to permit his name to be used in promulgating the order, as he was of the opinion that it was illegal, and concurred with the Attorney-General.

All the proceedings thus far in the case took place during the administration of President Johnson. On the 11th of March, 1869, President Grant nominated First-Lieutenant Appleton D. Palmer to be captain, Oct. 29, 1868, vice Bernard P. Mimmack, resigned; but the Senate did not act on the nomination, and it was renewed on the following December, and on the 22d of the same month the nomination was confirmed by the Senate.

Four principal questions arise in the case, and it is clear that, if they are all decided adversely to the petitioner, the judgment of the court below must be affirmed. They are as follows: 1. Did the petitioner resign, as found by the Court of Claims? 2. Did the President accept his resignation, and cause him to be notified of the acceptance of the same? 3. Could the President revoke his acceptance of the petitioner's resignation, after having given him notice that it was accepted? 4. Is there any thing in the other facts found by the court below to show that the resignation as accepted was ever legally revoked or rendered inoperative?

Sufficient appears to show that the resignation without date was written by the petitioner, and that it was enclosed by the petitioner in a letter and sent to the commander at Fort Sedgwick, with the request to place it in the hands of the department commander, to be forwarded to the War Department should he, the petitioner, ever again become intoxicated. Beyond all question, the resignation, voluntarily written and signed by the petitioner, together with the letter enclosing the same, was placed in the hands of the department commander pursuant to his request, with directions that it should be forwarded to the War Department in case he should ever again commit the offence described in the charges previously preferred against him by the commander of Fort Sidney.

Nor does it make any difference that the resignation was without date, as it is a clear legal proposition that the petitioner, by placing the resignation in the hands of the depositary, with power to forward it to the War Department in the event described, authorized the holder, upon the happening of the event, to fill up the date; and the subsequent conduct of the petitioner supports the conclusion that the depositary did not exceed his authority.

Viewed in the light of these suggestions, it is clear that the delivery of the resignation must be regarded as of the same validity as it would have had if the blank date had been filled up by the petitioner, and he had personally transmitted it to the War Department. Opposed to that is the suggestion that the transaction is one of an unusual character; but the answer to that is that the proposition came from the petitioner, and that it does not lie with him to call in question either its propriety or validity.

Argument to show that the President did accept the resignation and notify the writer of the same that it had been accepted is unnecessary, as both facts are embraced in the findings of the court below; nor was any attempt made in argument to deny that the evidence justified the findings.

Officers of the kind are nominated by the President and confirmed by the Senate; and if the petitioner ceased to be such an officer when notified that his resignation had been accepted, it requires no argument to show that nothing could reinstate him in the office short of a new nomination and confirmation. Prior to the act of the 13th of July, 1866, the President could dismiss an officer in the military or naval service without the concurrence of the Senate, but he never could nominate and appoint one without the advice and consent of the Senate, as required by the Constitution. Dubarry's Case, 4 Op. Att'y-Gen. 603; 14 Stat. 92.

Since the passage of that act, the President cannot dismiss such an officer in time of peace, and certainly no vacancy in such an office can be filled without the advice and consent of the Senate; from which it follows that the opinion of the Attorney-General, that the subsequent action of the President did not restore the petitioner to the military service, is correct. 12 Stat. 316.

Concede that, and it follows that the office became vacant when the incumbent was notified that his resignation had been accepted, and that the new appointment was in all respects regular when confirmed by the Senate.

Decided support to that conclusion, if any be needed, is derived from the subsequent findings of the court below, from which it appears that the petitioner, on the 19th of February, subsequent to the confirmation of the new appointee to the office in question, enlisted in the marine corps, and that he remained in that situation until his compensation amounted to $2,344; and that he was subsequently appointed a clerk in the Treasury Department, and that he served there in different capacities until his compensation amounted to more than $2,000 in addition to what he had previously received for his services in the marine corps.

For these reasons the court is of the opinion that the subsequent action of the President did not restore the petitioner to the military service, and that his claim was rightly rejected.

Judgment affirmed.


text: Talk:Mimmack v. United States/Opinion of the Court


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Stoll v. Pepper

ERROR to the Circuit Court of the United States for the District of Kentucky.

The court below found the following facts:--

Robert P. Pepper, was a distiller within the seventh district in the State of Kentucky, and the surveyed capacity of his distillery was 151 82/100 bushels per day. During the months of May, June, July, and August, 1873, he produced spirits in excess of the surveyed capacity to the number of 2,261 1/4 gallons, on which a tax was payable amounting in the aggregate to the sum of $1,582.86.

The surveyed capacity of the said distillery was duly reported to the Commissioner of Internal Revenue, and the spirits produced, including the said excess, were drawn from the receiving cistern, and placed in the government warehouse attached to the distillery, and were duly reported and assessed, and bonds for the payment of the tax was given according to law; all of which was duly reported to the Commissioner of Internal Revenue.

Afterwards the commissioner made an assessment of seventy cents per gallon for all the spirits produced in excess of the surveyed capacity during the months of May, June, July, and August, and directed the defendant Stoll, collector of the seventh district, to collect the same.

This assessment was made under the twentieth section of the act of June 6, 1872, and was made for the same spirits upon the same number of gallons, and for the same amount for which the taxes had already, under the first regular reports, been assessed and secured by bond, and which have since been paid, so that a collection of this assessment by the Commissioner of Internal Revenue would enforce a double payment of the tax upon the spirits.

In the production of spirits in excess of the estimated capacity no evasion of law was intended, and no benefit was derived from it by Pepper, the plaintiff, but the distillery was run beyond its surveyed capacity with the knowledge of the government officers, including the collector.

On the 9th of January, 1874, the defendant, after having made demand of the plaintiff for payment of the amount assessed for the said excess, and the plaintiff having refused payment, seized one hundred and fifty barrels of spirits belonging to the plaintiff, and containing 6,497 1/2 proof gallons, and after advertising the same for ten days, sold the whole lot at Frankfort, the place of seizure, for the sum of $1,798.70, being the amount of taxes assessed, inclusive of costs and penalties.

Said plaintiff before and at the time of seizure, and at the sale, in writing, protested to the defendant against the said proceedings, and notified him that he would hold him liable; and at the time of the sale of the said spirits the plaintiff was present, and warned bidders that the sale was illegal, and he would hold the purchasers responsible for the value of the whiskey.

Before this suit was brought, the plaintiff appealed to the Commissioner of Internal Revenue, according to law, for the correction of the said assessments as erroneous and illegal, and the said appeal was rejected. The spirits seized were, at the time of the seizure and up to the time of sale, of the market value of fifty-five cents per gallon, and of the aggregate value of $3,573.62. The court being of opinion that the second assessment by the Commissioner of Internal Revenue was not authorized by law, but that the plaintiff could not recover more than the amount actually collected, with interest at the rate of six per cent per annum, gave judgment that he recover the sum of $1,887.43, with interest thereon at the rate of six per cent per annum from the twenty-fifth day of November, 1874, until paid, and his costs.

The collector then sued out this writ of error.

The Solicitor-General for the plaintiff in error.

Mr. Thomas W. Bullitt, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Stoll v. Pepper


text: Talk:Stoll v. Pepper

title: Talk:Stoll v. Pepper


text:
Stoll v. Pepper/Opinion of the Court

The question in this case is, whether, if a distiller uses material for distillation in excess of the estimated capacity of his distillery, according to the survey made and returned under the provisions of the law regulating that subject, and in the regular course of his business pays the taxes upon his entire production, he can be again assessed at the rate of seventy cents on every gallon of spirits which the excess of material used should have produced, according to the rules of estimation prescribed by the internal-revenue law. There is no pretence of bad faith. No evasion of the law was intended, and no benefit was derived by the distiller from what was done. He paid taxes on his entire production, and the second assessment was made upon precisely the same number of gallons that he had reported in his regular reports. The enforcement of this assessment, if made, will operate as double taxation, and nothing more.

The case arises under sect. 20 of the act of July 20, 1868 (15 Stat. 133), as amended June 6, 1872 (17 id. 244), and which is as follows:--

'That on the receipt of the distiller's return in each month the assessor shall inquire and determine whether the distiller has accounted for all the grain or molasses used, and all the spirits produced by him in the preceding month. If the assessor is satisfied that the distiller has reported all the spirits produced by him, and the quantity so reported shall be found to be less than eighty per cent of the producing capacity of the distillery as estimated under the provisions of this act, an assessment shall be made for such deficiency at the rate of seventy cents for every proof gallon. In determining the quantity of grain used, fifty-six pounds shall be accounted as a bushel; and if the assessor finds that the distiller has used any grain or molasses in excess of the capacity of his distillery, as estimated under the provisions of this act an essessment shall be made against the distiller, at the rate of seventy cents for every proof gallon of spirits that should have been produced from the grain or molasses so used in excess, which assessment shall be made whether the quantity of spirits reported is equal to or exceeds eighty per cent of the producing capacity of the distillery. If the assessor finds that the distiller has not accounted for all the spirits produced by him, he shall, from all the evidence he can obtain, determine what quantity of spirits was actually produced by such distiller, and an assessment shall be made for the difference between the quantity reported and the quantity shown to have been actually produced, at the rate of seventy cents for every proof gallon: Provided, that the actual product shall be assumed to be in no case less than eighty per cent of the producing capacity of the distillery, as estimated under the provisions of this act, or under the act to which this is an amendment.'

Before any distiller can commence business, some person designated by the Commissioner of Internal Revenue must make a survey of his distillery, 'for the purpose of estimating and determining its true spirit-producing capacity for a day of twenty-four hours.' Act of 1868, sect. 10 (15 Stat. 129), amended by sect. 12, act of 1872, 17 id. 239. There is nothing in any act of Congress which requires a distiller to call for a resurvey, unless he wishes to reduce his production (15 Stat. 138, sect. 30); but the Commissioner of Internal Revenue may at any time direct a new survey, if he is satisfied that the one already made is 'in any way incorrect or needs revision.' 17 id. 239, sect. 12.

There is nowhere in the internal-revenue law any express prohibition of production in excess of the estimated capacity. The requirement of taxes to the extent of eighty per cent of the capacity was intended the guard against the danger of frauds which might arise if under-production was allowed; but as the entire product goes from the distillery to the warehouse, and is there taxed without any deduction, it would seem that, if more than the estimated quantity was produced, the government could have no just cause of complaint. A continued over-production would be evidence to the commissioner of an incorrect survey which might need revision; but if the distiller does not escape taxation, the government suffers no loss.

The particular section under consideration evidently relates alone to the assessment and collection of taxes, and not to the punishment of offences. A distiller's books and his monthly returns should truly state the quantity of spirits he has produced. This section requires that upon the receipt of these returns the designated officer shall inquire and determine whether all the material used and the spirits produced have been accounted for. If he is satisfied that the production has been correctly reported, he must next inquire whether it equals or exceeds eighty per cent of the estimated producing capacity of the distillery, and, if it does not, make an assessment for the deficiency at the rate of seventy cents a gallon,-the theory of the law being that a distiller must at all events pay taxes upon eighty per cent of his producing capacity.

If, however, the officer finds that the distiller has not accounted for all the spirits he has produced, he must, from such evidence as he can obtain, determine what quantity was actually produced, and make an assessment for the difference between the quantity reported and that shown to have been produced, at the rate of seventy cents a gallon; but in no case can the actual product be assumed to be less than eighty per cent of the producing capacity of the distillery. Thus far clearly only the assessment of taxes is indicated.

There remains to be considered the provision specially applicable to this case, and that is where the officer finds that the production is in excess of the estimated capacity of the distillery. If this is an offence, it is certainly no more heinous than that of not accounting for all spirits actually produced, and as to which provision is here made only for an assessment of the tax for the deficiency. It would seem, therefore, that the object of this part of the section must have been to secure the collection of the tax, and not to impose a penalty for over-production. The provision is found immediately following that which requires the officer to determine whether the distiller has accounted for all the material used and all the spirits produced. For the purpose of verifying the return as to the quantity produced he applies the statutory rule of production to the quantity of material used, and for the purpose of verifying the report of material used he reverses the process and reduces the product to material. If he becomes satisfied that the returns are correct, and that there has been no excess of material used, he simply inquires whether the product equals or exceeds eighty per cent of the estimated producing capacity of the distillery, and if it does, his work is done. The law is satisfied in such cases if the actual production equals or exceeds eighty per cent of the producing capacity of the distillery, or, what is the same thing, eighty per cent of the statutory estimate of the producing capacity of the material used; for in making the survey the statutory estimate of production from the material is applied, and the estimated capacity of the distillery in gallons indicates exactly the estimated quantity of material that will be used. But if an excess of material is used, a different rule is to be applied, and the tax for the excess is not to be paid on the actual product, but on what it should have been according to the statutory estimate of the producing capacity of the material. It was to insure the payment of the tax upon the excess of material at this rate that we think this provision was introduced. We cannot believe that double taxation was intended, for that would be introducing into a section of a statute apparently intended only to regulate the assessment of taxes in several classes of cases, a penal provision as to one of the classes which did not apply to the others, and when there was seemingly no cause for the unfavorable discrimination. The provision is relieved from the charge of being superfluous by the fact that it imposes a tax upon the production of the excess of material at what it should have been according to the statutory estimate of the capacity of the material, and not upon what it actually was.

Judgment affirmed.

title: Stoll v. Pepper/Opinion of the Court


text: Talk:Stoll v. Pepper/Opinion of the Court


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Settlemier v. Sullivan

ERROR to the Circuit Court of the United States for the District of Oregon.

This was an action for the possession of certain lands in the State of Oregon. The plaintiff asserted title to them under a patent of the United States, issued, in 1875, to one Durcharme and wife, a previous conveyance by them to one Magers, and a deed by the latter and wife in 1877.

The defendant claimed to have acquired the title to the premises by a sheriff's deed, made in 1862, on a sale of the property under execution, upon a judgment recovered by one Walker against Magers in one of the courts of Oregon. The case turned upon the validity of this judgment. The demand in the complaint was for two hundred and fourteen acres of land; but the answer disclaimed title to portions of the premises alleged to have been previously sold, and the recovery was had for the residue.

It appeared from the record that the judgment the validity of which was considered was rendered in September, 1861, in the Circuit Court of the county of Marion, in favor of one Samuel Walker against Magers for something less than $200, in an action upon two promissory notes of the defendant, one for $100 and one for $50, each drawing interest at the rate of two per cent a month. The complaint contained copies of the notes, and prayed judgment for the amount with accruing interest. Indorsed upon it was a notice which, in the system of procedure then prevailing in the State, took the place of process, addressed to the defendant, stating that unless he appeared in the Circuit Court for the county of Marion on the third Monday of September then following, and answered the complaint, it would be taken as confessed, and its prayer be granted.

The complaint and notice were not served upon the defendant personally, but on the 2d of September, 1861, were served upon his wife, by delivering copies to her 'at the usual place of abode,' she being, according to the certificate of the sheriff, 'a white woman of over fourteen years of age.' No statement is made by the officer that the defendant could not be found, nor is any reason given why personal service was not made upon him.

On the second day of the ensuing term, the 17th of September, judgment was rendered against the defendant for the amount due upon the notes as prayed. Its entry is preceded by a statement that on that day the plaintiff came by his attorneys, but that the 'defendant, although duly served with process, came not, but made default.' Upon this judgment execution was issued, and the property in controversy was sold.

In tracing his title through the sheriff's deed the defendant produced a copy of the entry of the judgment mentioned, without producing the complaint and notice and the sheriff's certificate of service. The omission was afterwards supplied by the plaintiff against the objection that the recital of service upon the defendant in the judgment could not be contradicted or impeached by the return of the sheriff, and that the entire judgment roll, and not detached portions of it, should be produced in any attempt to contradict or impeach the recital The plaintiff then produced a copy of the judgment similar to that already offered by the defendant. Those papers constituted under the statutes of the State, in force at the time, the judgment roll in the case, that is, the official record of the proceedings, showing the nature of the action, the manner in which jurisdiction over the person of the defendant was acquired, and the character of the judgment. Those statutes provided that, in cases of judgment by default, the judgment roll should consist of copies of the complaint and notice, with the proof of service, and a copy of the judgment or decree. In cases of judgment after appearance, the notice and proof of service could be omitted from the roll, as the pleadings would be sufficient in such cases to show the jurisdiction of the court. But in cases of judgment by default, the proof of service of the complaint and notice was to constitute an essential portion of the record; and that proof, when furnished by the sheriff, could by the statute only consist of his official certificate, or that of one of his deputies, whose acts in that respect were in legal effect his. There was no suggestion at the trial that there were any other documents which could be regarded as part of the official record in the case, the objection taken being that detached portions were at different times introduced, and not the whole at once. The defendant relied upon the recital in the entry of the default preceding the judgment, and the object of his objection was to compel his adversary to put in evidence the same recital.

The documents constituting the official record of the action being introduced, the court instructed the jury that the judgment was void for want of jurisdiction in the court rendering it over the person of the defendant, and directed a verdict for the plaintiff. A verdict to that effect was accordingly rendered and judgment entered thereon, to review which the present writ of error is brought. The instruction given to the jury constitutes the error alleged for a reversal of the judgment.

The statute of Oregon, in force when service of summons was made in the action of Walker v. Magers, reads as follows, substituting copy of complaint and notice for summons: 'The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared by the plaintiff, his agent, or attorney, as follows:. . . In all other cases to the defendant, or, if he be not found, to some white person of the family above the age of fourteen years, at the dwelling-house or usual place of abode of the defendant.' Statutes of Oregon, 1855, p. 86, sect. 29.

Mr. J. N. Dolph for the plaintiff in error.

Mr. W. Lair Hill, contra.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Settlemier v. Sullivan


text: Talk:Settlemier v. Sullivan

title: Talk:Settlemier v. Sullivan


text:
Settlemier v. Sullivan/Opinion of the Court

If the certificate of the sheriff were the only document in the record referring to the service of the complaint and notice, there would be no doubt as to the correctness of the ruling of the court below. Service upon the wife of the defendant was not service upon him. No theoretical unity of husband and wife can make service upon one equivalent to service upon the other. Personal citation to the defendant, or his voluntary appearance, is the essential preliminary to a purely personal judgment. The statute of the State in force at the time required service in cases other than those brought against corporations, or persons laboring under some disability, as minors, or as being of unsound mind, to be made by delivering a copy to the defendant personally; or, if he could not be found, to some white person of his family above the age of fourteen years, at his dwelling-house or usual place of abode. If it be admitted that substituted service of this kind upon some other member of the family is sufficient to give the court jurisdiction to render a personal judgment against its head, binding him to the payment of money or damages, it can only be where the condition upon which such service is permissible is shown to exist. The inability of the officer to find the defendant was not a fact to be inferred, but a fact to be affirmatively stated in his return. The substituted service in actions purely in personam was a departure from the rule of the common law, and the authority for it, if it could be allowed at all, must have been strictly followed.

Such we find to be the ruling of the Supreme Court of Oregon. In Trullenger v. Todd (5 Oreg. 39), judgment was entered by default for want of an answer by the clerk, in vacation, under the act of 1868, upon a certificate of the sheriff that he had served the summons upon the defendant 'by delivering a copy thereof to a person of the family above the age of fourteen years, at the dwelling-house or place of abode of the defendant;' and the court held the certificate insufficient to authorize the entry of judgment in not containing the fact that he defendant could not be found. The statute, so far as the manner of service was concerned, was similar to that of 1861, a summons being substituted for the notice. 'The statute,' said the court, 'in providing how service shall be made, evidently implies that when a summons is placed in the hands of an officer for service, that he will use ordinary diligence, at least, to find the party against whom the summons is issued, in order that he may make personal service upon him; but after using ordinary diligence, if he should fail to find such party, constructive service may be made; and when such service is made, the certificate should contain the fact that the party could not be found.' The court having thus held the judgment void, the only question left for its determination was whether it could entertain an appeal from it, as a void judgment could be disregarded and treated as a nullity whenever any right was claimed under it, whether set aside or not. It maintained the appeal solely for the purpose of reversing the judgment and thus purging its records.

Here it is contended that the recital in the entry of the default of the defendant in the case in the State court, 'that, although duly served with process, he did not come, but made default,' is evidence that due service on him was made, notwithstanding the return of the sheriff, and supplies its omission. But the answer is, that the recital must be read in connection with that part of the record which gives the official evidence prescribed by statute. This evidence must prevail over the recital, as the latter, in the absence of an averment to the contrary, the record being complete, can only be considered as referring to the former.

We do not question the doctrine that a court of general jurisdiction acting within the scope of its authority-that is, within the boundaries which the law assigns to it with respect to subjects and persons-is presumed to act rightly and to have jurisdiction to render the judgment it pronounces, until the contrary appears. But this presumption can only arise with respect to jurisdictional facts, concerning which the record is silent. It cannot be indulged when the evidence respecting the facts is stated, or averments respecting them are made. If the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. But if the record give the evidence or make an averment with respect to a jurisdictional fact, it will be taken to speak the truth, and the whole truth, in that regard; and no presumption will be allowed that other and different evidence was produced, or that the fact was otherwise than as averred. 'If, for example,' to give an illustration from the case of Galpin v. v. Page (18 Wall. 366), 'it appears from the return of the officer or the proof of service contained in the record that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also.'

We are of opinion that the principle here stated applies in this case. The record from the State court showed service upon the wife of the defendant in that case, and not upon the defendant; and in the absence of any finding of the court that other service was made, or the finding of a fact from which other service must necessarily be inferred, none will be presumed. Other service will not be presumed from its assumption in a recital in the entry of a default. It follows that the judgment of the court below must be affirmed; and it is

So ordered.

MR. JUSTICE BRADLEY, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE HARLAN, dissenting.


text: Talk:Settlemier v. Sullivan/Opinion of the Court


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Settlemier v. Sullivan/Dissent Bradley

MR. JUSTICE BRADLEY, with whom concurred MR. CHIEF JUSTICE WAITE and MR. JUSTICE HARLAN, dissenting.

I dissent from the judgment in this case.

The entry of judgment recites that process was duly served. The return of the sheriff, though it does not state all the facts necessary to make the service good, yet does not contradict the recital; and no allegation was made that the defendant could have been found to be personally served with process. Under these circumstances, I think the judgment cannot be assailed collaterally.

title: Settlemier v. Sullivan/Dissent Bradley


text: Talk:Settlemier v. Sullivan/Dissent Bradley


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Hill v. National Bank

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Frederick W. Jones for the appellant.

Mr. Charles M. Matthews, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Hill v. National Bank


text: Talk:Hill v. National Bank

title: Talk:Hill v. National Bank


text:
Hill v. National Bank/Opinion of the Court

This is a case in equity. On the 15th of January, 1864, Hill executed a deed of trust to Edward Shoemaker, conveying in fee-simple four lots in Georgetown to secure the payment of three promissory notes therein described. The notes were executed by Hill. All of them bore date on the 21st of October, 1863, and were payable to the order of Judson Mitchell and John Davidson. They were each for the sum of $2,210.33, and were to be paid, respectively, at one, two, and three years from date, with interest at the rate of six per cent per annum, to be paid half-yearly. In the event of any default of payment by Hill, the trustee was authorized to sell the premises for the satisfaction of the debt. The lots were numbered 1, 2, 3, and 4, and were all contiguous. On each of three of the lots there was a brick tenement. Lot 4 was unimproved. The appellant bought the premises with the view of using them for a paper-mill. This purpose he proceeded to carry out. He altered the buildings, put in the requisite machinery, and took a lease of water-power from the Chespeake and Ohio Canal Company, 'to be used at his property at the corners of Potomac and Water Streets' (being the premises in question), 'and to be used in propelling the machinery of a paper-mill and appurtenant works.' He introduced the water upon the premises, and applied it according to the terms of the lease.

The several notes were duly assigned and transferred to the Farmers' and Mechanics' National Bank. Hill having made default by allowing all the notes to become overdue without payment, the trustee, under the power conferred by the deed, advertised and sold the real estate as it was when the deed was executed, and irrespective of the water-power and the paper-mill machinery. A bill was thereupon filed by Hill to set the sale aside. The Supreme Court of the District sustained the bill and annulled the sale, upon the ground that the realty, the water-power, and the machinery constituted an entirety, and should have been sold together. The court said: 'The complainant placed in these structures, at great expense, all the machinery necessary to a paper-mill, and procured from the Chesapeake and Ohio Canal Company a water-power, which he conveyed underground some three or four hundred feet to the mill property, for the purpose of operating the machinery, and also incurred a heavy expense for an underground tail-race, to conduct the water away.'

'The great mischief done, as we think, was not in selling the lots together, but in selling them without reference to the fixed machinery and water-power connected therewith.' 'We are governed in our conclusion in setting this sale aside by the fact that both parties had a right to permanent inprovements upon the premises, so far as the same were inalienably fixed upon each other, and that there was no exclusive right of either to divide them.' This bill was thereupon filed by the bank against Hill and the Chespeake and Ohio Canal Company to enforce the payment of the amount due upon the notes by a decree for the sale of the lots described in the deed of trust, together with the water-power and machinery used upon the premises, if the court should deem that the two latter could be included in the sale. The court below finally decreed 'that the said real estate and premises, including said fixtures and machinery, and also said water-power, according as the same are referred to, mentioned, or described in said bill, be sold as an entirety, and as forming and being a paper manufactory, according to a suitable description thereof, to be made for the purpose of a sale by the trustees to be hereinafter appointed to make said sale.' This decree was affirmed at the general term. Hill then brought the case here for review, and assigns three errors:--

1. That the court erred in decreeing the sale of lot 4 with the other property.

2. In decreeing the sale of machinery not permanently annexed, without evidence as to the mode, object, and intention of the annexation.

3. In decreeing the sale of the water-power as appurtenant to the land.

The appellant does not deny that the debt is bona fide; that it is overdue; that it belongs to the appellee; nor that the decree is for the proper amount. His objections are only those assigned as errors. To all three of them there is a common answer. The points are res judicatoe between the parties. In setting aside the sale made by the trustee, upon the appellant's bill filed to bring about that result, the court adjudged, expressly, that the entire premises, including lot 4 and the machinery and water-power, should be sold together as an entirety; and the sale was set aside because it was not so made. The appellant now asks that the decree before us be reversed, because it requires the sale to be made in the manner prescribed in the former case. This cannot be done. The questions raised by the assignments are concluded by the former decree, and both parties are barred from litigating them a second time. Story, Eq. Jur., sect. 1523. The law of estoppel is founded in reason and justice. It makes the acts and conduct of a party binding against him whenever it should be so, and will not permit him to assert any claim to the contrary. He thus himself makes the law of his case, and he must abide the consequences. When in the former case the sale by the trustee was challenged by the appellant, he and the appellee were both before the court with their proofs, and the case was fully heard. We have shown the result, and we do not sit here to review or reverse it. The decree upon the points in issue, and decided, is as binding upon the parties as a judgment or decree would be in any other case. Story, Eq. Jur., supra; Bigelow, Estoppel, 812-815.

But, irrespective of this consideration, we think the decree appealed from is correct.

It is not questioned that the realty, the water-power, and the machinery constituted a paper-mill. They were therefore, ex vi termini, a unit, and could not be disintegrated and the parts sold separately without large depreciation, and a diminished amount in the aggregate of the yield. It is obviously best for all concerned that the property should be sold pursuant to the decree. According to the terms of the lease the water-power could be employed only on the premises, and for driving there a paper-mill. Lot 4 is convenient and important for use in connection with the rest of the property, and hence should be sold with it. That lot is the only vacant and unimproved part of the premises, but it is not on that account the less necessary for various purposes in operating the establishment. Olcott v. Bynum et al., 17 Wall. 44. Without the water-power the machinery would be worthless, except to be torn out and removed. By placing it in the buildings in constructing the mill, every part and parcel of it, as between mortgagor and mortgagee, became a fixture and a part of the freehold.

There is some conflict in both the English and American authorities upon this subject; but we think the view we have expressed is the better one, and sustained by the greater weight of authority. The intent and conduct of the mortgagor under the circumstances of this case are conclusive. Ex parte Astbury, Law Rep. 4 Ch. 630; Metropolitan Counties Society v. Brown, 26 Beav. 454; Christian v. Dripps, 28 Pa. St. 271; Hill v. Sewald, 53 id. 271; Seeger v. Pettit, 77 id. 437; Palmer v. Forbes, 23 Ill. 301; Deal v. Palmer, 72 N. C. 582; Walmsley v. Milne, 7 C. B. N. S. 115; Powell v. Manufacturing Company, 3 Mas. 459; Trull v. Fuller, 28 Me. 545; Corliss v. McLagin, 29 id. 115; McKini v. Mason, 3 Md. Ch. 187; Winslow v. Merchants' Insurance Co., 4 Metc. (Mass.) 306.

Decree affirmed.


text: Talk:Hill v. National Bank/Opinion of the Court


text:
Keith v. Clark

ERROR to the Supreme Court of the State of Tennessee.

The facts are stated in the opinion of the court.

Mr. Philip Philips and Mr. George Hoadly for the plaintiff in error.

Mr. J. B. Heiskell, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Keith v. Clark


text: Talk:Keith v. Clark

title: Talk:Keith v. Clark