Davis v. Ensign-Bickford Co.

• Decision Date: 11 January 1944
• Docket Number: No. 12537.,12537.
• Citation: 139 F.2d 624
• Parties: DAVIS v. ENSIGN-BICKFORD CO.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F.2d 624 (1944)

DAVIS v. ENSIGN-BICKFORD CO.

No. 12537.

Circuit Court of Appeals, Eighth Circuit.

January 11, 1944.

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 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. 517. Assuming, since it is not necessary to decide the point, that the attachment and garnishment could have been issued by a state court in Arkansas under the laws of that state, it appearing that no service had been or could be made upon the defendant, the Arkansas statute could confer no authority upon the federal court to issue the writ.

In the second place, in the federal courts attachment is but an incident to a suit, and unless the court has jurisdiction over the person of the defendant the attachment must fall. Jurisdiction can not be acquired by means of attachment. In the absence of an existing lien on property within the jurisdiction of the court a federal court must acquire jurisdiction over the person of a defendant before it is authorized to attach his property or garnish his creditors. Toland v. Sprague, 12 Pet. 300, 326, 328, 9 L.Ed. 1093; Ex parte Railway Co., 103 U.S. 794, 796, 26 L.Ed. 461; Laborde v. Ubarri, 214 U.S. 173, 174, 53 L.Ed. 955; Big Vein Coal Co. v. Read, 229 U.S. 31, 37, 38, 33 S.Ct. 694, 57 L.Ed. 1053; State of Missouri ex. rel. St. Louis, B. & M. R. Co. v. Taylor, 266 U.S. 200, 208, 45 S.Ct. 47, 69 L.Ed. 247, 42 A.L.R. 1232; Arkansas Anthracite Coal & Land Co. v. Stokes, 8 Cir., 2 F.2d 511, 512, 513; United States v. Brooke, D.C.N.Y., 184 F. 341, 342; In re Stark, D.C.N.Y., 36 F.2d 280; Simkins, Federal Practice, 3d ed. 1938, § 763, p. 547; 4 Am.Juris., Attachment and Garnishment, § 45, p. 577.

In the Big Vein Coal Co. case, supra 229 U.S. 31, 33 S.Ct. 696, 57 L.Ed. 955, the Supreme Court said that "* * * in cases where the defendant could not be sued and jurisdiction acquired over him personally, the auxiliary remedy by attachment could not be had, as attachment was not a means of acquiring jurisdiction. * * * that an attachment is still but an incident to a suit, and that, unless jurisdiction can be obtained over the defendant, his estate cannot be attached in a Federal court."

The situation here is distinguished from a case in which jurisdiction in rem has been acquired in a state court and thereafter the case is removed to the federal court. In the latter case "any attachment * * * of the goods or estate of the defendant * * * shall hold the goods or estate so attached * * * to answer the final judgment or decree * * *." 28 U.S.C.A. § 79. Compare Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co., 8 Cir., 133 F. 267. Even in the absence of personal jurisdiction, a federal court can render a judgment enforceable against the attached property when...