Davis v. Ensign-Bickford Co., No. 12537.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSTONE, THOMAS, and JOHNSEN, Circuit
Citation139 F.2d 624
PartiesDAVIS v. ENSIGN-BICKFORD CO.
Decision Date11 January 1944
Docket NumberNo. 12537.

139 F.2d 624 (1944)

DAVIS
v.
ENSIGN-BICKFORD CO.

No. 12537.

Circuit Court of Appeals, Eighth Circuit.

January 11, 1944.


139 F.2d 625

Haywood Scott, of Joplin, Mo. (Thomas B. Pryor and Thomas B. Pryor, Jr., both of Fort Smith, Ark., and John W. Scott, of Washington, D. C., on the brief), for appellee.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

This case presents the question of the jurisdiction of the District Court to entertain an original action to recover damages for personal injuries brought by appellant Davis against appellee Ensign-Bickford Company, a non-resident corporation, which could not be served with process within the state. Jurisdiction over the person of the defendant was sought to be acquired by means of attachment and garnishment of property within the state belonging to the defendant.

On July 15, 1942, Davis commenced an action in the District Court for the Western District of Arkansas to recover damages resulting from the alleged negligence of the defendant in the manufacture, sale, and distribution of safety fuses used for blasting operations in a coal mine. The defendant is a Connecticut corporation, is not authorized to do business in Arkansas, and has no designated agent for service of process in the state.

Without issue of summons Davis, by procedure in the federal court in conformity with the provisions of Arkansas statutes, sued out orders of general attachment, for notice by publication, and for warning the defendant. No property was found or seized within the state by the Marshal, but the Hercules Powder Company and the Atlas Powder Company, having been garnished, answered that they were indebted to the defendant in the sums of $29,255.75 and $23,429.52, respectively.

On August 4, 1942, the defendant filed a motion alleging that it, "appearing specially for the purpose of this motion, and for no other purpose whatsoever, objects to the jurisdiction of the court and denies that the court has any jurisdiction over the person of the defendant * * * and moves the court to dismiss the * * * complaint * * * to quash and vacate the order of general attachment * * * to quash the garnishment proceedings * * * and to adjudge that the court has no jurisdiction over the person of the defendant, * * * and * * * that because of lack of jurisdiction * * * its property is not subject to attachment and * * * garnishment."

The motion was sustained and the judgment appealed from was entered quashing and vacating the writs of attachment and garnishment and dismissing the complaint for want of jurisdiction.

The appellant contends:

1. That Federal Rules of Civil Procedure, rule 64, 28 U.S.C.A. following section 723c, gives federal District Courts jurisdiction to issue writs of attachment and garnishment at the time of the commencement of an action, in the manner provided for by the law of the state where the court is held, against non-resident defendants who cannot be served with process within the state, and thus acquire jurisdiction of the person of the defendant; and

139 F.2d 626

2. That the District Court had jurisdiction of the person of the defendant because it voluntarily entered its appearance in the case by moving to dismiss the complaint, thereby waiving its objection to the jurisdiction of the court.

Appellant's first contention is not tenable.

Rule 82 of the Rules of Civil Procedure provides that "These rules shall not be construed to extend or limit the jurisdiction of the district courts of the United States or the venue of actions therein." Rule 64 must be so construed.

Prior to the adoption of the Rules of Civil Procedure the question of the jurisdiction of federal courts over defendants who can not be served with process had long been settled.

In the first place, the jurisdiction of federal courts is not and never has been controlled by state law. Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 443, 30 S.Ct. 125, 54 L.Ed. 272; Woods Bros. Const. Co. v. Yankton County, 8 Cir., 54 F.2d 304, 308, 81 A.L.R. 300. It depends upon acts of Congress. Goldey v. Morning News, 156 U.S. 518, 523, 524, 15 S.Ct. 559, 39 L.Ed....

To continue reading

Request your trial
28 practice notes
  • Nowell v. Nowell, Civ. A. No. 67-963-M.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 31, 1968
    ...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 attachment would be an improper device to preserve the status quo in an action thought to......
  • State of Iowa v. Union Asphalt & Roadoils, Inc., Civ. No. 7-1932-C-2.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • March 14, 1968
    ...924, 74 S.Ct. 512, 98 L.Ed. 1078; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir.). A state legislature cannot confer jurisdiction which is not authorized by Congress upon a federal court. In re Borough 281 F. S......
  • Monroe v. Pape, No. 59 C 329.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 18, 1963
    ...alone determines and limits the jurisdiction of the courts of which it is the creator); Davis v. Ensign-Bickford Company, 8 Cir., 139 F.2d 624, 626 (the jurisdiction of federal courts is not and never has been controlled by state 40 Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d......
  • Jonnet v. Dollar Sav. Bank of City of New York, No. 75--1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 9, 1976
    ...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 did not, as it might have, grant the district courts extraterritorial process. 1 I......
  • Request a trial to view additional results
28 cases
  • Nowell v. Nowell, Civ. A. No. 67-963-M.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • December 31, 1968
    ...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 attachment would be an improper device to preserve the status quo in an action thought to......
  • State of Iowa v. Union Asphalt & Roadoils, Inc., Civ. No. 7-1932-C-2.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • March 14, 1968
    ...924, 74 S.Ct. 512, 98 L.Ed. 1078; Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Davis v. Ensign-Bickford Co., 139 F.2d 624 (8th Cir.). A state legislature cannot confer jurisdiction which is not authorized by Congress upon a federal court. In re Borough 281 F. S......
  • Monroe v. Pape, No. 59 C 329.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 18, 1963
    ...alone determines and limits the jurisdiction of the courts of which it is the creator); Davis v. Ensign-Bickford Company, 8 Cir., 139 F.2d 624, 626 (the jurisdiction of federal courts is not and never has been controlled by state 40 Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 8 L.Ed.2d......
  • Jonnet v. Dollar Sav. Bank of City of New York, No. 75--1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 9, 1976
    ...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 did not, as it might have, grant the district courts extraterritorial process. 1 I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT