Allen v. Clark, 8158Y.

Decision Date29 March 1938
Docket NumberNo. 8158Y.,8158Y.
CourtU.S. District Court — Southern District of California
PartiesALLEN v. CLARK, United States Marshal, et al.

William C. Ring and Charles F. Christopher, both of Los Angeles, Cal., for plaintiff.

Irl D. Brett and Charles Richardson, Jr., both of Los Angeles, Cal., for defendant Robert E. Clark.

Jennings & Belcher, of Los Angeles, Cal., for defendant Hartford Accident & Indemnity Co.

Lawler & Degnan (by Jack W. Hardy), of Los Angeles, Cal., for defendants Radiodifusora Internacional and others.

Roger Arnebergh, of Los Angeles, Cal., in pro. per. and for defendants Pacific Escrow & Title Guarantee Co. and others.

YANKWICH, District Judge.

The action was instituted on February 3, 1938, by R. E. Allen, as receiver under appointment of the superior court of California, in a proceeding ancillary to an action there pending. By virtue of this receivership, the plaintiff claims the right to certain property attached by Robert E. Clark, United States marshal for the Southern District of California, and by him alleged to have been delivered to other defendants as a result of a conspiracy between them, and contrary to the instructions of the plaintiff as receiver.

The recovery of the personal property, or its value, $30,000, the value of its use, $2000, and $10,000 exemplary damages are sought.

The defendants have challenged the jurisdiction of the court and moved to dismiss the cause under the provisions of section 37, Judicial Code, 28 U.S.C.A. § 80.

It is not disputed that, irrespective of the status of the pleadings or the failure to raise the question of jurisdiction by demurrer, we have the power, under this section, to entertain, or even institute, an inquiry to determine whether a substantial controversy, properly within the jurisdiction of the court, exists. Bullard v. Cisco, 1933, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254, 93 A.L.R. 141; McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135.

Some of the defendants are residents of California, and others are nonresidents. True diversity of citizenship does not, therefore, exist. Salem Trust Co. v. Manufacturers' Finance Co., 1924, 264 U.S. 182, 183, 44 S.Ct. 266, 68 L.Ed. 628, 31 A.L.R. 867. But the cause is one arising under the Constitution and laws of the United States, under subdivision 1(a), § 24 of the Judicial Code, 28 U.S.C.A. § 41 (1) (a). A cause is said to so arise when its correct determination depends upon the construction of the Constitution or laws of the United States, or when the right of a party may be sustained by one construction or defeated by another. Cohens v. Virginia, 1821, 6 Wheat. 264, 5 L.Ed. 257; Osborne v. Bank of United States, 1824, 9 Wheat. 738, 6 L.Ed. 204; Macon Grocery Co. v. Atlantic Coast Line Ry. Co., 1910, 215 U.S. 501, 30 S.Ct. 184, 54 L.Ed. 300; Hull v. Burr, 1914, 234 U.S. 712, 34 S.Ct. 892, 58 L.Ed. 1557; Gully v. First National Bank, 1936, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70.

As said by Mr. Justice Cardozo, in Gully v. First National Bank, supra, 299 U.S. 109, at page 112, 57 S.Ct. 96, 97, 81 L.Ed. 70: "To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L. Ed. 388; First National Bank v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 374, 64 L. Ed. 690. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another."

A suit against a marshal of the United States, or against his bond, arising from service of process issued out of the United States court, is clearly within these principles. See Feibelman v. Packard, 1883, 109 U.S. 421, 3 S.Ct. 289, 27 L.Ed. 984; Bachrack v. Norton, 1889, 132 U.S. 337, 10 S.Ct. 106, 33 L.Ed. 377; Lammon v. Feusier, 1884, 111 U.S. 17, 4 S.Ct. 286, 28 L.Ed. 337; Bock v. Perkins, 1891, 139 U.S. 628, 11 S. Ct. 677, 35 L.Ed. 314; Ellis v. Norton, C.C., 1883, 16 F. 4; Houser v. Clayton, C.C. Tex.1878, 12 Fed.Cas. p. 600, No. 6,739. They have been extended to apply to acts of private persons in causing the marshal to make a wrongful levy. Hurst v. Cobb, C.C. Tex., 1894, 61 F. 1. Compare First National Bank v. Williams, 1920, 252 U.S. 504, 40 S.Ct. 372, 64 L.Ed. 690, where an action against the Comptroller of the Currency, which alleged unlawful practices, was sustained as arising under the laws of the United States. And see, Breard v. Lee, C.C. Cal., 1911, 192 F. 72; Gay v. Ruff, 1934, 292 U.S. 25, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970; Rogge v. Michael Del Balso, D.C.N.Y., 1936, 15 F.Supp. 499.

The fact that the process may have been invalid does not alter the situation. The case, as made by the pleadings, still involves a federal question. Cases such as Dowling Bros. v. Andrews, 7 Cir., 1927, 19 F.2d 961, are easily distinguishable. There the action was against the revenue officer, as an individual, and the refusal of the court to entertain jurisdiction was based upon that fact. Here the marshal is sued as such and the acts charged against him, while in violation of his duties, nonetheless, arise under the laws defining those duties.

The required jurisdictional amount is present. And the presence of a federal question supplies the second jurisdictional requisite. De War v. Brooks, D.C.Nev., 1936, 16 F.Supp. 636.

This fact cures the absent diversity of citizenship. However, it does not determine the question raised by the motion.

For if, notwithstanding the presence in the complaint before us of formal allegations showing jurisdiction, the evidence presented on the inquiry initiated by this motion, should show absence of such jurisdiction, it would be the duty of the court to dismiss the action. McNutt v. General Motors Acceptance Corp., supra; K. V. O. S., Inc., v. Associated Press, 1936, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183; Hartog v. Memory, 1886, 116 U.S. 588, 6 S.Ct. 521, 29 L.Ed. 725; Wetmore v. Rymer, 1898, 169 U.S. 115, 18 S.Ct. 293, 42 L.Ed. 682.

The action is brought against the marshal in his official capacity. His bondsmen have been joined. The other defendants are in court merely because of the marshal's acts, in which they are alleged to have participated. The tort, of which the plaintiff complains, arises from the release of property held by the marshal under an attachment in a prior action in this court. (We shall refer to it as "the prior action.")

If the writ from the execution of which the tort springs, was void on its face, because of the lack of jurisdiction in the court to issue it, the present action must fail.

Our right, upon a motion of this kind, to go back of the pleadings to other facts throwing light upon the jurisdiction of the court is unquestioned.

An examination of the records in this and the prior action shows that the attachment in the prior action was void on its face, was issued under a complaint which showed on its face absence of federal jurisdiction, which was not cured either by the general appearance of the defendants or by the amendment, after the levy, which added to the original complaint a second cause of action.

The original complaint was brought by one Lawrence W. Allen, against one individual and two corporate defendants, all citizens of the Republic of Mexico, who are also defendants here. It sought to recover the sum of $2,041 upon a common count for money had and received by the defendant to the use of the plaintiff's assignors. The complaint averred specifically that the claim had been assigned to the plaintiff for collection. The affidavit of attachment, which, under the Conformity Act, 28 U.S.C.A. § 726, had to conform to the state law, Code Civ.Proc.Cal. § 538, as amended by St.Cal. 1937, p. 1554, was confined to this claim. So was the statement to the clerk, required under the Code of Civil Procedure of California, § 542, as amended by St.1937, p. 1617.

The writ was issued on September 3, 1937. Its preamble read:

"To the Marshal of the above entitled Court, Greetings:

"Whereas, the above entitled action was commenced by Plaintiff in the above entitled Court to recover from the Defendants M. P. Barbachano, Border Electric and Telephone Company, a corporation, and Radiodifusora Internacional, S. A., a corporation, the sum of Two Thousand Forty-one Dollars ($2,041.00) lawful money of the United States, and costs of suit; and an affidavit for, and undertaking on, attachment, have been filed as required by law."

The levy was made by the marshal on the same day. His return, dated November 9, 1937, showed that he attached certain electrical and radio station equipment at Los Angeles, Cal., by taking it into his custody and placing a keeper in charge. On October 5, 1937, at the request of the attorneys for the plaintiff and defendant, both of whom declined to make further deposit to protect the marshal's costs, he released the property and returned the writ not satisfied. The receiver was appointed by the superior court on September 18, 1937, and confirmed on October 4, 1937, in an action in which John A. Murphy was plaintiff and the defendants in the prior action, and others, were defendants. Murphy claimed an interest in the property levied by the marshal by virtue of a joint adventure existing between him and certain of the defendants.

On October 5, 1937, the receiver demanded of the marshal the release and delivery to him of the property under attachment. But, as appears from the affidavits, the property had already been released from attachment by the marshal.

Authorization to bring suit against the marshal was given by the superior court on October 10, 1937. In view of the discussion to follow, it is well to state that under the law of California, a receivership is an ancillary remedy. The rights of a receiver are those of...

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