Charles Chase v. Emil Wetzlar

Decision Date27 May 1912
Docket NumberNo. 1045,1045
Citation56 L.Ed. 990,225 U.S. 79,32 S.Ct. 659
PartiesCHARLES A. CHASE, Appt., v. EMIL WETZLAR, Surviving Executor of the Estate of Gustave J. Wetzlar, Deceased
CourtU.S. Supreme Court

Messrs. Charles H. Burr and Frederic W. Frost for appellant.

Messrs. Howard S. Gans, Paul M. Hersog, and Julius Walerstein for appellee.

Mr. Chief Justice White delivered the opinion of the court:

Suing as a citizen of Pennsylvania, Chase, who was complainant below, made defendants to the bill by which this cause was commenced Emil Wetzlar and William P. Bonn, alleged to be 'alien subjects of the Emperor of Germany, residing in Frankfort-on-the-Main, executors of the estate of Gustave J. Wetzlar, deceased.' It was averred that the testator, a naturalized citizen of the United States and a resident of the city of New York, died in 1898; that his will was probated on February 1, 1899, in the surrogate's court of the county of New York, and that letters testamentary were duly issued to the defendants. It was further averred that, by virtue of the fourth paragraph of the will, Julius G. Wetzlar, a son of the testator, was entitled, on reaching the age of twenty-five years, to receive a sixth part of the principal of the residuary estate; that such share was invested by the defendants, as executors, in railroad bonds, and they 'held the said bonds in the city of New York, as executors, subject to the jurisdiction of your honorable court' (the circuit court). It was further averred that Julius G. Wetzlar reached the age of twenty-five years on August 23, 1908, at which time the one-sixth part of the entire residuary estate exceeded in value the sum of $100,000; and that about three years theretofore Julius had mortgaged an undivided one-third interest of such share, to secure the payment of a promissory note for $5,000, bearing interest. On default in payment, it was alleged, the interest so mortgaged was sold in February, 1909, at public auction, for the sum of $3,000; and Chase, claiming through the purchaser at the sale, became vested on June 20, 1910, with and entitled to the immediate possession of the said one third of one sixth of such residuary estate. The defendants, as executors, it was charged, neglected and refused to pay to Chase the share of the estate in question. A copy of the will was attached to the bill as a part thereof. In the will the defendants were stated to be residents of the German Empire, and express power was conferred upon them to remove the trust estate at any time from the state of New York. The specific relief asked was that complainant might be declared entitled to The immediate possession of one third of one sixth of the residuary estate of Gustave J. Wetzlar, deceased, and also to payments of income of the said one-third interest from August 23, 1908, 'and may pay your orator the said portion of the said share of Julius G. Wetzlar as may be found to have been unlawfully withheld or diverted from him.' There was also a prayer for general relief.

To obtain an order for service outside of the district, an affidavit was made in which it was averred that the bill had been filed to determine disputed claims to a fund which the defendants, as executors and trustees, held within the jurisdiction of the court, and that defendants were alien subjects of the Emperor of Germany, and resided within that Empire, and that neither was within the district, and neither had voluntarily appeared in the action. The court, reciting that it appeared 'both by the averments contained in the bill . . . and by the affidavit of . . . complainant . . . that the suit was commenced to enforce equitable liens upon, or claims to the title of, personal property within this district, and that all of the defendants are not inhabitants thereof,' entered an order on October 25, 1910, requiring the defendants, on or before a date named, to appear, plead, answer, or demur to the bill, and that on or before a named date a certified copy of the order and of the bill should be served upon them whereever found. Presumably in consequence of such service having been made upon him at his residence in Germany, Emil Wetzlar, one of the defendants, appearing specially for the sole purpose of challenging the jurisdiction of the court, filed a plea verified by his attorney, and moved the dismissal of the cause upon the ground 'that no portion of the property of the estate of Gustave J. Wetzlar, and no portion of the trust fund of said estate referred to in the bill herein, is now or has been, for at least five years prior hereto, within the city, county, or state of New York, nor within the southern district of New York, nor within the United States, but is and has been in Germany, in the possession and control of the said Emil Wetzlar, there residing.' Argument was heard before Circuit Judge Lacombe upon the sufficiency of the plea. It was held to be 'sufficient in law and form,' and complainant was allowed to file a general replication thereto.

No proceeding for the examination of witnesses out of court having been taken by either party within thirty days after replication, the complainant set the cause down for hearing upon the pleadings, as authorized by court rule 109. The case was heard before Hazel, District Judge. The previous ruling of Judge Lacombe was followed. It was held that the plea was but a negative one, and that the burden was on the complainant to establish the exist- ence of the essential jurisdictional facts which the plea traversed, and that, as no proof had been offered by the complainant, there was an absence of jurisdiction, and the bill was dismissed. This direct appeal was then taken, the assignments of error being as follows:

'First. That the court erred in sustaining the sufficiency of the plea to the bill in the above-entitled cause.

'Second. The court erred in dismissing the bill after hearing upon bill, plea, and replication.

'Third. The court erred in refusing to maintain jurisdiction of the above-entitled cause.

'Fourth. The court erred in dismissing the bill in the above-entitled cause for lack of jurisdiction.'

The court also filed a certificate to the effect that the bill had been dismissed for want of jurisdiction, and that an appeal was allowed solely to review such question.

At the threshold it is insisted that there is a want of authority to entertain this direct appeal because the bill was dismissed for lack of proof, and not because of the want of power of the circuit court as a Federal court. The contention is without merit. United States v. Congress Constr. Co. 222 U. S. 199, 56 L. ed. 163, 32 Sup. Ct. Rep. 44. As the defendants were without the territorial jurisdiction of the circuit court, its authority was dependent upon the property sought to be affected being within the district, as contemplated by § 8 of the act of March 3, 1875, chap. 137, 18 Stat. at L. 472, U. S. Comp. Stat. 1901, p. 513, which authorizes the exertion of jurisdiction as to property of absent defendants. The ruling clearly, therefore, concerned the power of the court as a Federal court—that is, under the statute to entertain the case under the circumstances presented.

As, in order to dispose of the merits, it becomes essential to fix the meaning of § 8 of the act of 1875 above referred to, the section is excerpted in the margin.

Section 8 of act March 3, 1875, chap. 137, 18 Stat. at L. 472, U.S. Comp. Stat. 1901, p. 513.

Sec. 8. That when in any suit commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable All the errors pressed upon our attension will be disposed of by considering two questions,—the correctness of the ruling of the court below as to the burden of proof, and whether, under the hypothesis that the court correctly held that the burden was on the complainant nevertheless error was committed in dismissing the bill, in view of the averments therein contained and the admissions made by the plea.

First. As to the burden of proof.

On this subject the contention is that although the averment of the bill that the property sought to be affected was within the district was traversed by the plea, nevertheless the defendant was bound to prove the allegations of his plea, and hence it was error, in the absence of proof, to dismiss the...

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