Curtis v. North American Indian, Inc.

• Decision Date: 09 January 1922
• Docket Number: 3716.
• Citation: 277 F. 909
• Parties: CURTIS v. NORTH AMERICAN INDIAN, Inc., et al.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F. 909

CURTIS v. NORTH AMERICAN INDIAN, Inc., et al.

No. 3716.

United States Court of Appeals, Ninth Circuit.

January 9, 1922

John G Barnes, of Seattle, Wash., for plaintiff in error.

Elias A. Wright, Sam A. Wright, C. K. Poe, and A. J. Falknor, all of Seattle, Wash., for defendants in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge.

This action is in the nature of replevin by the North American Indian, a New York corporation, against Curtis Studio and E.S. and Clara Curtis, formerly husband and wife, but divorced before the action was instituted. Prior to the divorce, Curtis and wife did business as Curtis Studio in Seattle. Clara Curtis denied that plaintiff was a New York corporation, and that she held unlawful possession, or refused to deliver to plaintiff; Edward S. Curtis denied unlawful possession, admitted ownership by the Indian Company, and denied all damage. After hearing evidence on both sides, plaintiff corporation, over objection by Clara Curtis, was allowed to add two persons, Pegram and Borglund as plaintiffs, upon petition setting forth that they were citizens and residents of New York and Connecticut respectively, and were the then sole directors and trustees of the corporation. Verdict in favor of plaintiffs for the return of the property seized was directed, and Clara Curtis brought writ of error.

It is contended that the court erred in denying motion to quash the writ of replevin and to annul the action by the marshal for lack of jurisdiction. The statutes of Washington (sections 707-717, Remington Code) provide that, in action to recover possession of personal property, when immediate delivery is claimed, claimant in an affidavit shall show, among other matters: (1) Ownership or lawful right of possession under facts to be stated; and (2) wrongful detention. Upon receipt of the affidavit and bond in usual form, approved by the sheriff, the sheriff shall take the property described, if it be in possession of defendant or his agent, and retain custody, and without delay serve defendant with copy of the affidavit and bond. Within three days (section 710) exception to sureties may be made. Defendant at any time before delivery of the property to plaintiff (section 711) may require return thereof, upon giving bond in double the value of the property as stated in the affidavit for delivery to plaintiff. The sheriff must file the affidavit with the proceedings thereon with the clerk of the court within 20 days after taking the property.

The record shows that formal affidavit of replevin and a bond for delivery of the property were executed and filed, not with the marshal, but with the clerk of the United States District Court, and that the bond was approved by the United States District Judge, who ordered that a writ of replevin issue. In this way the process passed into the hands of the marshal, who served the writ, together with copy of the affidavit and bond, upon Mrs. Curtis. We cannot see that, because the court, following older practices, ordered the writ, there was lack of power in the marshal to proceed. Neither does approval of the bond by the judge render that obligation invalid, or prove lack of authority in the marshal to proceed to take charge of the property described in the affidavit. Had he failed to act, he would have been liable on his official bond, and certainly the sureties upon the bond would not be heard in a plea to be released because the judge, and not the marshal, approved of the security. Cobby on Replevin, Sec. 679; 23 R.C.L.pp. 896, 897; Hartlep v. Cole, 120 Ind. 247, 22 N.E. 130. The irregularity was in no manner prejudicial to Mrs. Curtis, who could have availed herself of her right to object to the sureties on the bond, or to take steps to give a counter bond.

Assignment of error is based upon the action of the court admitting a paper appearing to be a notice of assessment and receipt dated Albany, N.Y., November 18, 1919, issued by the state comptroller of New York to the North American Indian Company, for a state franchise tax imposed on a business corporation for the period ending October 31, 1920. The receipt is dated January 2, 1920. There is also a certificate by the deputy secretary of state of New York, dated October 4, 1920, certifying...