Buck Stove Range Company v. Vickers, 10

CourtUnited States Supreme Court
Writing for the CourtVan Devanter
Citation57 L.Ed. 189,33 S.Ct. 41,226 U.S. 205
PartiesBUCK STOVE & RANGE COMPANY et al., Plffs in Err., v. C. C. VICKERS et al
Docket NumberNo. 10,10
Decision Date02 December 1912

226 U.S. 205
33 S.Ct. 41
57 L.Ed. 189
BUCK STOVE & RANGE COMPANY et al., Plffs in Err.,


C. C. VICKERS et al.

No. 10.
Argued December 19, 1911.
Decided December 2, 1912.

Page 206

Messrs. Seneca N. Taylor, Malcolm B. Nicholson, and William J. Pirtle for plaintiffs in error.

[Argument of Counsel from pages 206-208 intentionally omitted]

Page 208

Messrs. Stephen H. Allen and Robert Stone for defendants in error.

[Argument of Counsel from pages 208-211 intentionally omitted]

Page 211

Mr. Justice Van Devanter delivered the opinion of the court:

By suits begun in the district court of Morris county, Kansas, and consolidated for purposes of trial and judgment, seven judgment creditors of one Vickers sought to set aside, as fraudulent, a conveyance by him, and to

Page 212

subject the land included therein to the satisfaction of their several judgments. The plaintiffs were corporations organized under the laws of states other than Kansas, and four of them were doing a purely interstate business in that state, but without complying with its laws presently to be mentioned. The defendants set up this noncompliance by an answer in the nature of a plea in abatement, and the court sustained the plea and dismissed the suits as to the four plaintiffs. As to the other three plaintiffs, relief was denied for other reasons, which need not be stated. The judgment was affirmed by the supreme court of the state, against the contention that the laws of Kansas under which the plea in abatement was sustained are violative of the commerce clause of the Constitution of the United States (80 Kan. 29, 101 Pac. 668), and then the case was brought here.

Some minor questions of appellate practice were urged upon our attention, but their statement and consideration have become unnecessary through the concession of counsel for plaintiffs in error, made during the oral argument and acted upon at the time, that the writ of error might be dismissed as to the Aultman and Miller Buckeye Company, the Consolidated Steel & Wire Company, and the Galveston Rope Company. Therefore, attention need be given only to the ruling upon the plea in abatement.

Our power to review this ruling is challenged, because of the statutory provision that there shall be no reversal in this court upon a writ of error 'for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court.' Rev. Stat. § 1011, U. S. Comp. Stat. 1901, p. 715. This provision has been part of the judiciary acts from the beginning, and often has been applied upon writs of error to the circuit and district courts, but never to a case coming here from a state court. Piquignot v. Pennsylvania R. Co. 16 How. 104, 14 L. ed. 863, and Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336, illustrate its application in cases brought here from

Page 213

circuit courts, and International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. ed. 678, 27 L.R.A. (N.S.) 493, 30 Sup. Ct. Rep. 481, 18 Ann. Cas. 1103, and International Textbook Co. v. Lynch, 218 U. S. 664, 54 L. ed. 1201, 31 Sup. Ct. Rep. 225, are cases in which it was not applied upon writs of error to state courts. This difference in the treatment of the two classes of cases has not been inadvertent, but deliberate, and the reason for it is at once apparent when § 22 of the original judiciary act (1 Stat. at L. 84, chap. 20) is examined. The provision originated in that section and was there associated with other provisions which unmistakably show that it was intended to embrace only writs of error to the circuit and district courts. At the time of the revision in 1873, § 22 was divided into several shorter sections and included in the revision according to an arrangement, adopted for purposes of convenience only, whereby the several parts of the original section became more or less separated; but that, in the absence of some substantial change in phraseology, did not work any change in their purpose or meaning. Rev. Stat. § 5600, U. S. Comp. Stat. 1901, p. 3751; Hyde v. United...

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