Anderson v. Elliott

Decision Date01 May 1900
Docket Number336.
Citation101 F. 609
PartiesANDERSON et al. v. ELLIOTT, Constable, et al.
CourtU.S. Court of Appeals — Fourth Circuit

Charles Seymour (T. E. H. McCroskey and Norman B. Morrell, on the brief), for appellants.

James H. Merrimon (J. G. Merrimon, on the brief), for appellees.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

GOFF Circuit Judge.

On the 13th day of July, 1889, in the circuit court of the United States for the Northern division of the Eastern district of Tennessee, Vernon K. Stevenson and others instituted a suit against Tip Lovingood, Ki Woody, Columbus Hoss, Jasper Fain and William M. Marr, citizens and residents of the county of Monroe, state of Tennessee, and William M. Nixon, a citizen and resident of Hamilton county, Tenn. The object of said suit was to recover the possession of certain tracts of land situated in Monroe county, Tenn. Process was duly issued from the clerk's office of said court on the 13th day of July 1889, returnable to August rules next following. The marshal returned that he executed the summons on Lovingood, Woody Hoss, Marr, and Nixon, and that Fain was not to be found in the Eastern district of Tennessee. On the 2d day of September, 1889, the defendants Nixon and Marr filed their disclaimer, denying that they were in possession of the lands mentioned in the plaintiffs' declaration, and renouncing all claim, title, and interest in the same. On January 26 1892, an order was entered in said cause reciting the service of process on the defendants Lovingood, Woody, and Hoss, their failure to appear and make defense, and directing that as to them the bill be taken for confessed, and the cause be set for hearing ex parte, and that on alias subpoena issue as to the defendant Fain. On the 27th of January, 1892, another order was duly entered by the court in said cause, of which the following is a part, viz.:

'And it appearing to the satisfaction of the court that subpoena was duly issued against Jasper Fain, one of the defendants in the above-entitled cause, and that the marshal for said district has returned that said Fain is not to be found in this district, it is ordered that said Fain be directed to appear, plead, answer, or demur to the complainants' bill on or before the 1st day of March, 1892, and that copy of this order be served on the said Jasper Fain, if practicable, wherever found, or, if such personal service is not practicable, shall be published for four consecutive weeks in the Madisonville Gazette, a newspaper published at Madisonville, in Monroe county, in said district. And it is further ordered that, in case said Fain does not appear within the time so limited, the court, upon proof of the service or publication of said order, and of the performance of the directions contained therein, will entertain jurisdiction, and proceed to the hearing and adjudication of this suit, in the same manner as if said Fain had been served with process in this district.'

On the 25th February, 1892, said court entered another order in said cause, extending the time for the service of process on the defendant Fain, or the making of said publication, until the July term, 1892, of said court. On the 26th of May, 1892, the marshal for the Western district of North Carolina made return that he on that day duly served said process and notice on the said Jasper Fain by reading and delivering a copy in person to him. On the 11th August, 1892, on motion of the plaintiffs, an order was entered in said cause reciting the due service of the summons on all of the defendants, their failure to appear, plead, or demur, and then adjudging that said plaintiffs recover of the defendants Lovingood, Woody, Hoss, Fain, Marr, and Nixon the premises described in the declaration, which were particularly located by metes and bounds. In said order of judgment the court also directed that a writ of possession issue to put the plaintiffs in possession and occupation of the said lands, which were described as situated in Ocoee district, and the records, official survey, and maps of that district of the state of Tennessee were referred to for a further description of said property.

On the 10th day of February, 1893, the writ of possession so authorized was issued and placed in the hands of the marshal of the Eastern district of Tennessee, who made the following return thereon:

'Executed in full, as commanded, as to Tip Lovingood, by removing him from the premises described, and putting the company in possession through their agent, W. D. Hale, on May 24, 1893; also executed as to Ki Woody and Columbus Hoss, May 25, 1893, in the same manner. The deft. Jasper Fain was permitted to remain through said agent, Mr. Hale, under an agreement between them. The defts. William M. Nixon and William M. Marr were not to be found in possession or on any portion of said lands, and nothing was done to them.'

On the 10th day of February, 1894, an alias writ of possession was awarded by said court, the object of which was to put said plaintiffs in full possession of the lands described. This alias writ was duly issued on the 21st day of April, 1899, and was in the hands of the marshal of the Eastern district of Tennessee for execution, when one D. W. Deweese, a justice of the peace of Cherokee county, in the state of North Carolina, issued his warrant for the arrest of Murphy L. Anderson, W. N. Barr, G. W. Metcalfe, and Joe Garrett (the deputy marshal and the posse with him), who were endeavoring to place the plaintiffs in the possession of said land, as the writ authorized them to do. The charge against them was described in said warrant 'as unlawful and malicious trespass,' a proceeding founded on a statute of the state of North Carolina. The 'unlawful and malicious trespass,' so charged, consisted of the means taken by the deputy marshal and those summoned to assist him in executing said writ, and in placing the plaintiffs in said suit in the possession of the land as decreed to them by said court. The affidavit on which the warrant was issued was made by one A. A. Fain, who claimed to be a tenant in common with said Jasper Fain and others of the land in controversy, and who charged said deputy marshal and his assistants with committing a trespass on the land when they entered upon it for the purpose of removing said Jasper Fain and his personal property therefrom. The warrant was executed by J. N. Elliott, a constable of Cherokee county, N.C., who arrested Murphy L. Anderson, the deputy marshal, and W. N. Barr and G. W. Metcalfe, two of the parties summoned to assist him, and removed them to Murphy, in said county of Cherokee, where they were delivered to said justice and held in custody. While they were so held as prisoners, they were again arrested by the sheriff of said county, on a warrant issued by the same justice of the peace, in which they were charged with assaulting the said Jasper Fain with deadly weapons, and with imprisoning him without authority of the law; and also at the same time they were served by said sheriff with process in a civil suit instituted by said Fain, in which he claimed $10,000 damages for false imprisonment. On May 2, 1899, while they were so in the custody of said officers, who claimed to be acting under the authority of the statutes of North Carolina, the said Murphy L. Anderson, W. N. Barr, and G. W. Metcalfe presented their petition to the circuit court of the United States for the Western district of North Carolina, praying that the writ of habeas corpus might issue, directed to said sheriff and constable, and, as they alleged their unlawful detention, they asked that they might be discharged from arrest. The writ issued on that day, and came on regularly to be heard on consideration whereof the court below, on the 20th day of May, 1899, denied the prayer of the petitioners, and remanded them to the custody of said officers of the state of North Carolina. From that action of the court below, this appeal was asked for and obtained.

Section 753 of the Revised Statutes of the United States is as follows:

'The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process or decree of a court or judge thereof; or is in custody in violation of the constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; or unless it is necessary to bring the prisoner into court to testify.' It follows, therefore, that if the petitioners were so held by said officers because of an act done by them in pursuance of a valid decree of the circuit court of the United States for the Northern division of the Eastern district of Tennessee, then they should have been discharged. That the suit mentioned by the petitioners, styled 'Stevenson et al. v. Lovingood et al.' (a certified copy of the record was filed as an exhibit with the petition), was duly filed in the said circuit court of the United States in the state of Tennessee is without question. All of the defendants to said suit were duly served with process within the district where the suit was brought and in which they resided, except Jasper Fain. As to him service was made under the provisions of section 8 of the
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3 cases
  • In re McShane's Petition, W-C-36-62.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • September 16, 1964
    ...scope of petitioner's official duties as a United States marshal. See Boske v. Comingore, supra; Hunter v. Wood, supra; Anderson v. Elliott, 101 F. 609 (4 Cir. 1900); Campbell v. Waite, supra; Brown v. Cain, 14 Norton and Faneca, supra, both dealt with civil suits against petitioner and oth......
  • Reed v. Madden
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 29, 1937
    ...personal freedom of their officers would be relegated entirely to the decision and custody of the courts of the states." Anderson v. Elliott (C.C.A.4) 101 F. 609, 613. While it is true that it has been generally held that In re Neagle, supra, presented circumstances of exceptional urgency, ......
  • Babcock Lumber & Land Co. v. Ferguson
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 29, 1917
    ...59 L.Ed. 97, whilst not deciding the point directly, re-enforces and gives strength to the foregoing quotations from the opinion in Anderson et al. v. Elliott; for as in the facts, at the same term of the Supreme Court at which the state line case was decided, the petition for review in the......

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