Bucyrus Co. v. McArthur

• Decision Date: 11 September 1914
• Docket Number: 24.
• Citation: 219 F. 266
• Parties: BUCYRUS CO. v. McARTHUR.
• Court: U.S. District Court — Middle District of Tennessee

219 F. 266

BUCYRUS CO. v. McARTHUR.

No. 24.

United States District Court, M.D. Tennessee, Nashville Division.

September 11, 1914

Smith &amp Berry and W. L. Talley, all of Nashville, Tenn., for plaintiff.

SANFORD District Judge.

This is an original bill on the equity side of the court. It alleges that the plaintiff is a citizen and resident of Wisconsin and the defendant a citizen of Tennessee, residing in the Eastern District. The bill seeks to enforce: (1) A claim for $1,750.00 and interest, due as part of the purchase price of a steam shovel sold by the plaintiff to the defendant and secured by retention of title, which is now located within this district; (2) a claim for $703.06 for work and labor done by plaintiff on said shovel after such sale, and secured by statutory lien; (3) an account of $687.50 and interest for goods sold by plaintiff to defendant under a contract of conditional sale retaining title-- the location of such goods not being stated; (4) the further sum of $329.49 due by account stated; making a total claim of $3,470.05.

The bill alleges that this court has jurisdiction by reason of the diversity of citizenship and amount involved and the fact that 'this suit is brought to foreclose a mortgage' and 'is of a local nature.' The bill prays for a writ of subpoena directed to the defendant in the Eastern District of Tennessee; for 'writs of attachment pursuant to the practice in the State'; and for writ of injunction pendente lite.

The plaintiff has applied for a fiat for the issuance of a writ of attachment, as prayed in the bill.

I assume, for present purposes, without determination, that so much of the bill as relates to the retention of title to the steam shovel and the enforcement of a lien thereon is a suit 'of a local nature' within the meaning of section 54 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat 1102 (Comp. St. 1913, Sec. 1036)), so that a subpoena to answer may be served on the defendant by the marshal of the Eastern District; and that the plaintiff is hence not applying for the issuance of an attachment as the leading process for the purpose of compelling the defendant's appearance, but merely seeks an ancillary attachment to be issued in connection with the subpoena for the purpose of impounding the steam shovel. It is well settled that the federal courts, under the provisions of the laws of the United States governing the issuance of process are not authorized to issue foreign attachments as the original process commencing suits against defendants not amenable to personal service of process. Toland v. Sprague, 12 Pet. 300, 329, 9 L.Ed. 1093; Saddler v. Hudson, 2 Curt 6, 21 Fed.Cas. 135; Dormitzer v. Illinois Bridge Co. (C.C.) 6 Fed. 217, 218. And see Courtney v. Pradt (6th Circ.) 160 F. 560, 562, 87 C.C.A. 463, citing Chicago Railway v. Sturm, 174 U.S. 710, 715, 19 Sup.Ct. 797, 43 L.Ed. 1144. And section 915 of the Revised Statutes (derived from the Act of June 1, 1872, c. 255, Sec. 6, 17 Stat. 197), adopting in common law causes in the federal courts the laws of the several states in relation to attachments and other process against the property of defendants, merely authorizes the issuance of ancillary attachments for the purpose of impounding the property of defendants of whose person the court may otherwise acquire jurisdiction. Chittenden v. Darden, 2 Woods, 437, 5 Fed.Cas. 642; Nazro v. Cragin, 3 Dill. 474, 17 Fed.Cas. 1259, 1260; North v. McDonald, 1 Biss. 57, 18 Fed.Cas. 332, 333; Anderson v. Shaffer (C.C.) 10 F. 266, 267; Boston Elec. Co. v. Elec. Lighting Co. (C.C.) 23 F. 838, 839; and, by implication, Ex parte Railway Co., 103 U.S. 794, 796, 26 L.Ed. 461, and Treadwell v. Seymour (C.C.) 41 F. 579, 581. The contrary opinion in Guillou v. Fontain, 32 Leg.Int. 362, 11 Fed.Cas. 108, is contrary to the great weight of authority, and does not, in my opinion, rightly interpret the provisions of the statute. Such ancillary attachment, when otherwise authorized, may, however, it seems, be issued in connection with the personal process when the defendant is amenable thereto. Toland v. Sprague, supra, 12 Pet.at page 329, 9 L.Ed. 1093; North v. McDonald, supra, 18 Fed.Cas.at page 333.

Such ancillary attachment of the defendant's property is, however, a purely statutory remedy, in derogation of the common law. 1 Shinn on Attachment, Sec. 8 (g), p. 10; 4 Cyc. 396, and cases cited in note 3; 3 Am. & Eng.Enc.Law (2d Ed.) 184. It is entirely unknown to the immemorial practice and usage of Courts of Equity, either in England or in the United States, and is essentially a legal remedy, which, in the absence of statutory authority, is not available in equity. Drake on Attachments (3d Ed.) Sec. 4, a, p. 4; Shinn on Attachments, supra, Sec. 7, p. 9; 1 Bouv.Law Dict. (15th E.) 202; 3 Am. & Eng.Enc.Law (2d Ed.) 184, 193; Lackland v. Garesche, 56 Mo. 267, 270; McPherson v. Snowden, 19 Md. 197; People's Bank v. Shryock, 48 Md. 427, 30 Am.Rep. 476, 478. And see Courtney v. Pradt (6th Circ.) supra, 160 Fed.at page 562, 87 C.C.A. 463; Shiel v. Patrick (2d Circ.) 59 F. 992, 993, 8 C.C.A. 440; Black's Law Dict. (2d Ed.) 101.

There is, however, no statutory authority for the issuance of such an attachment in an equity cause in a Federal Court. Section 915 of the Revised Statutes, adopting in the Federal Courts the laws of the several states in relation to attachments against the property of defendants, is specifically limited to 'common-law causes'; and section 914 of the Revised Statutes, providing that the practice and procedure in Federal Courts shall conform to those of the State Courts, specifically excludes 'equity causes.' Neither has the Supreme Court of the United States, in promulgating the Rules of Equity Practice in the District Courts, under the authority vested in it by section 917 of the Revised Statutes, provided for such ancillary writs of attachment. Nor is provision made therefor by any rule of this court; although it may well be that this could be done in accordance with the 79th Rule of Equity Practice (198 F. xli, 115 C.C.A. xli), and under the various statutory provisions cited in Steam Stone-Cutter Co. v. Sears (C.C.) 9 F. 8, and Steam Stone-Cutter Co. v. Jones (C.C.) 13 F. 567.

The bill furthermore states no ground of attachment under the Tennessee statutes. The sole allegation upon which the prayer for attachment is predicated is, apparently, the averment that the defendant is 'threatening, preparing and attempting to remove the said steam shovel from out of the jurisdiction of this court. ' This is, however, not equivalent to an averment that the defendant is 'about to remove or has removed (his) property from the state,' or to any other ground of attachment set forth in the Tennessee statutes. Code of Tenn. Sec. 3455 (Shan. 5211).

I furthermore have great doubt whether on the face of the bill, this court has jurisdiction. Even assuming that the first two claims are, under the allegations of the bill, of an equitable nature, involving a claim to or lien upon property within this district, and that the defendant could hence be brought before the court either under section 57 of the Judicial Code, if not under section 54, there is no similar averment as to the third and fourth claims, which, so far as appears from the averments of the bill, are merely transitory rights of action to enforce purely legal claims. As to these, there appears to be no process by which the defendant can be brought before the court in this district. Furthermore, it may be doubted whether the joinder of separate legal and equitable causes of action, each of which is insufficient in amount to create Federal jurisdiction, will avail for jurisdictional purposes. And on the whole it may well be that the court should dismiss the bill upon its own initiative for want of jurisdiction, under the provisions of section 37 of the Judicial Code. This question is, however, now reserved; and the plaintiff will be allowed twenty days in which to file a brief thereon, before action is taken by the court.

An order will be entered in accordance with this opinion.

Opinion as to Jurisdiction.

In my opinion on the application for a writ of attachment I expressed great doubt as to whether or not the bill should not be dismissed by the court of its own initiative for want of jurisdiction, under section 37 of the Judicial Code. Act March 3, 1911, c. 231, 36 Stat. 1098 (Comp. St. 1913, Sec. 1019). This question was, however, reserved, and the plaintiff allowed twenty days in which to file a brief thereon. This brief has been filed and carefully considered.

Section 37 of the Judicial Code provides that if in any suit commenced in a district court it shall appear to the satisfaction of the court at any time after it has been brought that it does not really and substantially involve a dispute or controversy properly within the jurisdiction of the court, the court shall proceed no further therein, but shall dismiss the suit, with such order as to costs as shall be just. The jurisdiction of this court must depend upon the diversity of citizenship of the parties and the amount in controversy, if jurisdiction can be maintained. The plaintiff is alleged to be a corporation of the State of Wisconsin and the defendant a citizen and resident of the Eastern District of Tennessee. The necessary diversity of citizenship therefore exists. The plaintiff sues upon four claims aggregating $3,407.05. The first is for $1,750.00 and interest, alleged to be due as part of the purchase price of a steam shovel located within this district, on which the plaintiff claims a lien. The second is for $703.06 for work and labor subsequently done upon said shovel for which the plaintiff likewise claims a lien on the shovel. These two...