Rorick v. Devon Syndicate

• Decision Date: 22 May 1939
• Docket Number: No. 676,676
• Citation: 307 U.S. 299,59 S.Ct. 877,83 L.Ed. 1303
• Parties: RORICK v. DEVON SYNDICATE, Limited
• Court: U.S. Supreme Court

307 U.S. 299

59 S.Ct. 877

83 L.Ed. 1303

RORICK

v DEVON SYNDICATE, Limited.

No. 676.

Argued April 24, 1939.

Decided May 22, 1939.

Rehearing Denied June 5, 1939.

See 307 U.S. 650, 59 S.Ct. 1041, 83 L.Ed. —-.

Mr. George R. Effler, of Toledo, Ohio, for petitioner.

Mr. George D. Welles, of Toledo, Ohio, for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

The case is here on a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit. We granted the writ because the court below had decided an important question of local law in a way probably in conflict with applicable local decisions and probably had misconstrued certain federal statutes and a decision of this Court thereunder. 306 U.S. 626, 59 S.Ct. 643, 83 L.Ed. —-.

The basic question here involved is whether a federal district court, in the absence of jurisdiction in personam and after removal of a cause from a state court where jurisdiction in rem over certain property of a defendant has already been acquired, can issue an order of attachment or garnishment against other property of the same defendant.

Petitioner, a resident of Ohio, brought suit on June 19, 1930, in a state court in Ohio against respondent, a nonresident corporation organized under Canadian law, on a contract claim for personal services rendered.¹ Summons was concurrently issued, but personal service was never had; and simultaneously, an affidavit in attachment and garnishment was filed. A second affidavit in attachment and garnishment was filed on June 27, 1930, naming additional persons; and shortly thereafter certain funds and property of respondent were garnisheed. Subsequently, service by publication was completed; and soon afterwards, and before judgment, respondent appeared specially and obtained a removal of the cause to the District Court of the United States for the Northern District of Ohio, Western Division. In the District Court respondent also appeared specially and moved to quash the service by publication and to dismiss the attachment and garnishment. Nothing further was done in the cause for over five years. Then, on February 17, 1936, petitioner, with leave of the District Court, filed a supplemental and amended petition repeating in substance the allegations of the original petition; and a supplemental affidavit in garnishment which named as garnishees the same persons designated in the original affidavits of June 1930 in the state court. On the same day, the District Court issued an order of attachment and notices to garnishees. Under the latter additional funds in the hands of one of the garnishees were reached. And on April 11, 1936, respondents again appeared specially in the District Court, and moved, inter alia, to dismiss the attachment and garnishment under the supplemental affidavit of February 17, 1936. After removal to the District Court there was neither personal service, nor, so far as appears, service by publication.

By its motions of January 26, 1931, and April 11, 1936, respondent asserted that the affidavits in attachment and garnishment were defective and void under Ohio law; that there was no property of respondent within the jurisdiction of the District Court or the state court on which any valid attachment could be or was levied; that there was no property of respondent in the possession of any of the garnishees; that the attachment and garnishment and the service of summons were void by reason of incorrect designation of respondent; that there was no lawful service of summons under the supplemental and amended petition made on respondent; that the supplemental attachment and garnishment under the amended petition were also void for lack of personal service; and that the District Court had no jurisdiction over either the respondent or its property appropriate for the maintenance of this action.

After oral argument on respondent's motions, the District Court entered an order discharging the attachment and garnishment and striking the petition from the files of the court, on the grounds that the affidavits in attachment and garnishment, dated June 19 and June 27, 1930, were defective and void, and that the supplemental affidavit in attachment and garnishment was also void and ineffective, since no personal service had been made on respondent. On appeal to the Circuit Court of Appeals the judgment was affirmed on the grounds that the original attachment or garnishment in the state court was premature and void; that on removal the federal District Court could not validate an attachment not perfected in the state court proceeding; and that attachment may not issue in a federal District Court until the defendant has been personally served or has voluntarily appeared.

Of the various questions raised below and briefed here, only those urged in the petition for certiorari and incidental to their determination will be considered on review. General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273; Connecticut Railway & Lighting Co. v. Palmer, 305 U.S. 493, 59 S.Ct. 316, 83 L.Ed. 309.

Before coming to the basic question here involved, namely, whether the garnishment secured in the District Court under the supplemental affidavit of February 17, 1936, was void, there are two preliminary questions. These are (1) whether the notary public before whom the affidavits in attachment and garnishment of June 19 and June 27, 1930, were taken was disqualified, thus rendering the garnishment proceedings void and of no effect; and (2) whether the garnishments obtained in the state court were premature and void because they were secured without personal service and prior to the first publication of notice of constructive service.

First. The Ohio General Code provided that an affidavit might be used to obtain a provisional remedy such as attachment or garnishment, Sec. 11523, and that an affidavit might be made before any person authorized to take depositions, Sec. 11524. Sec. 11532 provided that 'The officer before whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.' The notary in question was D. W. Drennan, a member of the Ohio bar and of the bar of the District Court. Although Drennan had some private practice of his own, he was in the employ of a corporation, of which petitioner was president, and previously in the employ of a predecessor partnership, of which petitioner was a member. But he did not represent petitioner in this case; nor had he ever represented him as personal counsel; nor was he consulted by petitioner with reference to this case; nor was he related to petitioner; nor did he have any financial stake in the outcome of this suit. His sole connection with the case was that he acted as notary on a few papers. Furthermore, the petition in this case alleged a cause of action personal to petitioner, not one on behalf of the corporation by which Drennan was employed or on behalf of its predecessor partnership.

Since Drennan was not a 'relative or attorney' of petitioner, he was not disqualified to take the affidavit unless within the meaning of the Ohio statute he was 'otherwise interested in the event of the action or proceeding.' The District Court held that he was so interested. We do not so interpret the Ohio law. Absent some legal or material interest, it seems to us, on the basis of the Ohio authorities which we have found, that there must be some immediate interest in the action akin to that of a relative in order for the notary to run afoul of the statutory prohibition. Disability thus depends on the particular circumstances of each case—the degree of intimacy in relationship between petitioner and notary. In Rhinelander Paper Co. v. Pittsburgh Co., 15 Ohio Cir.Ct.,N.S., 286, an Ohio court held that a young man working as a salaried employee for a firm of attorneys retained in the case was not disqualified by the foregoing section from taking an affidavit in the case as notary. The interest which disqualifies under the Ohio statute, said that Court, is 'some legal, certain and immediate interest such as formerly disqualified a witness from testifying.' Id., 15 Ohio Cir.Ct.,N.S., page 286. Certainly, if an employee of one who himself is disqualified to act as notary is qualified so to act, an employee of a corporation whose officer is suing not on behalf of the corporation but for himself would seem to be similarly qualified under Ohio law. This seems to us especially persuasive, since the notary in question was in fact taking not a deposition but an affidavit and since the affidavit was not for use as evidence.² Accordingly, we conclude that the affidavits of June 19 and June 27, 1930, were not defective because they were sworn to before D. W. Drennan.³

Second. Sec. 11279 of the Ohio General Code provides that 'A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.' Sec. 11819 provides that 'In a civil action for the recovery of money, at or after its commencement, the plaintiff may have an attachment against the property of the defendant' upon various enumerated grounds. In this case the petition was filed, summons was issued, and an affidavit in attachment and garnishment was filed—all on June 19, 1930 It would seem, therefore, that Sec. 11819 was satisfied. But the Circuit Court of Appeals held that an attachment which issued before personal service was obtained, or before the beginning of publication for substituted service, was premature and void. Under that test the attachments and garnishments sought in the state court on June 19 and June 27, 1930, were defective since personal service was never had and since service by publication was not commenced until several months later.

The Circuit Court of Appeals reached this conclusion in reliance upon its earlier ...