Big Vein Coal Company of West Virginia v. Benjamin Read

Citation33 S.Ct. 694,57 L.Ed. 1053,229 U.S. 31
Decision Date26 May 1913
Docket NumberNo. 501,501
PartiesBIG VEIN COAL COMPANY OF WEST VIRGINIA, Plff. in Err., v. BENJAMIN H. READ
CourtUnited States Supreme Court

Mr. Osborne I. Yellott for plaintiff in error.

Messrs. William L. Rawls, Frank Gosnell, and George Weems Williams for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This case involves the jurisdiction of a circuit court of the United States to issue an order of attachment in a case where no personal service could be had upon the defendant, and wherein there was no personal appearance to the action.

The case was begun in the circuit court of the United States for the northern district of West Virginia to recover in debt upon certain promissory notes. A summons was issued against the defendant, Benjamin H. Read, trading as Lynah & Read, and return was made by the the marshal that the writ had not been served, as defendant was not found in his district. Thereafter an affidavit was filed for an attachment, setting forth that the defendant was one of the receivers of the circuit court of the United States for the northern district of West Virginia of the property of the Oakland Coal & Coke Company, and that there had been allowed to him for his services as such receiver the sum of $2,000. An order of attachment was issued, and the return of the marshal stated that he had been unable to locate any property in his district upon which to serve the attachment, and accordingly returned the writ, 'No property found.' Afterwards an order was made which, after reciting the beginning of the suit, and that the defendant was a nonresident of West Virginia; that the special master had found the sum of $2,000 due him as such receiver, and that an order of attachment had been issued and placed in the hands of the marshal for the purpose of attaching the estate of the defendant, provided that a copy of the order be served upon the defendant, that he appear before the court, and that a copy of the order served upon the defendant and one Slingluff, special receivers in a suit entitled 'Baltimore Trust & Guaranty Co. v. Oakland Coal & Coke Co.' should be notice to them of the proceedings, and that the claim of the defendant was sought to be attached therein.

A copy of the order was served upon the defendant in Baltimore, Maryland, who thereafter appeared by his counsel for the purpose only of objecting to the jurisdiction of the court, and moved the court to dismiss the suit and quash the attachment upon the following grounds:

'First. The record shows that this defendant is not a citizen of or resident in, nor found within, the northern district of West Virginia.

'Second. The record shows that the defendant has no property whatever within the said state or district.

'Third. That this court has no jurisdiction in rem or in personam in said action.

'Fourth. That at the time of the suing out of the writs of summons and of attachment herein on the 26th day of June, 1911, this defendant was not a citizen or resident or found within West Virginia, and he had no property in said state or district, and at no time since has this defendant been such citizen or resident, or had any property within the said district, although the return day of the said writs has long since passed, and the defendant makes the said writs and returns thereon by the marshal for the northern district of West Virginia a part of this motion.

'Fifth. The fund or compensation ordered by this honorable court to be paid to the defendant for services as receiver was not, at the time of the issuance of said writs or at any time since then, liable to be attached upon the alleged indebtedness of the plaintiff, or for the payment thereof, in this honorable court.

'Sixth. This honorable court has no jurisdiction either of property or person giving jurisdiction for the maintenance of the said action.'

Thereafter, the case coming on to be heard, counsel appearing for the defendant for the purpose of objecting to the jurisdiction and for the purpose of the motions filed only, and further moving the court to vacate and set aside the orders issued, and to quash the service of summons in the action, and to dismiss the case, certain facts were found, without prejudice to any motion of the defendant, and without enlarging the appearance of the defendant, as follows:

'Messrs. Read and Slingluff were appointed receivers in the cause of the Baltimore Trust & Guarantee Co. v. Oakland Coal & Coke Co. of West Virginia, a cause pending in the United States circuit court for the northern district of West Virginia, by an order in said cause passed on the 12th day of June, 1907, and the receivership estate being ready for distribution on June 20, 1910, this court passed a decree referring the cause to Special Master C. D. Merrick, with directions, among other things, to make a report 'including costs and allowances and fees, to the end that a full and complete decree might be made for the distribution and settlement of the estate.'

'On May 15th, 1911, the special master filed such report. Among other allowances were the following:

"That Benjamin H. Read, for his services as receiver, is entitled to and should be allowed the sum of $2,000.'

'That no objection had been taken or exceptions made to the above allowance at the time the attachment was laid in this cause.

'That on July 7, 1911, this court passed an order ratifying the report of the master as to the above and similar allowances, but directed that the allowance of $2,000 commissions to B. H. Read be retained by the receivers pending the determination of the questions arising out of such attachment.

Afterwards the court delivered an opinion in which the judge directed that the former order, amounting to an attachment, should be set aside, and held that, inasmuch as personal service upon the defendant in the action might yet be obtained by alias summons, he would not then dismiss the action. Later, the plaintiff refused to direct the issuance of alias summons, and upon motion judgment was entered dismissing the action, and a certificate was made by the court.

The certificate states that the judgment complained of in plaintiff's writ of error, which was set out, is based solely upon the ground that the court had no jurisdiction as a Federal court to grant relief to the plaintiff by subjecting to the claim of the plaintiff the assets and credits of the defendant, to be attached in the case, without personal service of summons upon him, or his voluntary appearance in the cause, and that the motion filed in the case did not constitute a voluntary appearance, and that the...

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  • Nowell v. Nowell
    • United States
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    • December 31, 1968
    ...1473 (2d ed.1964). 9 Greeley v. Lowe, 155 U.S. 58, 72, 15 S. Ct. 24, 39 L.Ed. 69 (1894). 10 E.g., Big Vein Coal Co. of West Virginia v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053 (1913); Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir. 1944). This, of course, is not to suggest that ......
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    ...a federal district court could not obtain quasi in rem jurisdiction over a debt owed to an absent defendant. Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053. 20 Those policy considerations which enter into a jurisdictional determination once it is decided that naked powe......
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    ...7 C.J.S., Attachments, § 95, p. 1265; Laborde v. Ubarri, 1909, 214 U.S. 173, 29 S.Ct. 552, 53 L.Ed. 955; Big Vein Coal Co. v. Read, 1913, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053; Ex parte Des Moines & M. Ry. Co., 1880, 103 U.S. 794, 24 L.Ed. 461; United States v. Brooke, D.C.N.Y., 1910, 18......
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    ...only up to the adoption of the Federal Rules of Civil Procedure, but thereafter as well, until 1963. See Big Vein Coal Co. v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053 (1913); Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir. 1944). And in the 1963 amendment to rule 4(e) Congress di......
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