Ex parte Schulenburg

• Citation: 25 F. 211
• Parties: Ex parte SCHULENBURG.
• Decision Date: 13 July 1885
• Court: U.S. District Court — Eastern District of Michigan

25 F. 211

Ex parte SCHULENBURG.

United States Circuit Court, E.D. Michigan.

July 13, 1885

This was a petition for the protection of this court against the alleged unlawful service of process from the superior court of Detroit. The petition set forth, in substance, that petitioner was a citizen of Missouri, and a resident of St Louis; that, being a party defendant in a suit in this court he received word from his attorney that his case would be tried on June 9th, and in compliance with this notice he left his home and came to Detroit for the express and only purpose of attending upon the trial of said case, and as a material witness in his own behalf; that on the tenth of June the trial began, and continued until the 23d; that on the said tenth of June, while said trial was in progress, and as petitioner was proceeding from the court-room at the noon recess to his boarding-place, he was served with a writ of garnishment from the superior court of Detroit, in a suit wherein one Cuddy was plaintiff and one Sarah Horn was defendant; that petitioner thereupon applied to the court to set aside said process on the ground that he was privileged from such service, which application was refused. His prayer was for the 'protection of this court in that regard, and that the said Cuddy, his agents and attorneys, may be ordered to cause the service of said writ to be set aside, and that they may be restrained from proceeding or taking any steps against petitioner based upon such service, and that petitioner may have such other and further relief in the premises as shall seem proper.'

H. C Wisner, for petitioner.

BROWN J.

This is a renewal of an application made to this court for protection against the service of a writ of garnishment from the superior court of Detroit. The first application was made shortly after the service of the writ, and was denied by Mr Justice MATTHEWS and myself upon the ground of comity; in other words, that we ought not to entertain the application until the petitioner had exhausted his remedy in the state court. No opinion was expressed upon the merits of the question involved. Petitioner's motion to set aside the service of the writ having been denied by the state court, he now renews his petition for an order restraining Cuddy from proceeding further, and for an attachment for contempt.

The unusual character of this petition has induced me to examine with considerable care the cases which are supposed to authorize this interference with the proceedings of a court of co-ordinate jurisdiction. The earliest case in this country is that of Ex parte Hurst, 1 Wash.C.C. 186, in which it appeared that Hurst had come from his residence in New York to attend the trial of a case in the circuit court for the district of Pennsylvania, in which he was a party; that after his arrival he had also been subpoenaed as a witness in another case upon the docket of the same court; and that while he was at his lodgings he was arrested under an execution from the supreme court of Pennsylvania. Upon these facts his counsel moved that he be discharged from the custody of the sheriff. Mr. Justice WASHINGTON found that he was privileged from arrest, and discharged him. I have no criticism to make of this case. Indeed, it was the constant practice of the district courts sitting in bankruptcy to discharge from the custody of state officers bankrupts who had been arrested in violation of section 5107, exempting the bankrupt from arrest in any civil action during the pendency of the proceedings in bankruptcy. In re Kimball, 1 N.B.R. 193; In re Jacoby, Id. 118; In re Glaser, Id. 336; In re Wiggers, 2 Biss. 71; Norris v. Beach, 2 Johns. 294; Bours v. Tuckerman, 7 Johns. 538; Sanford v. Chase, 3 Cow. 381. Had the petitioner in this case been arrested by process from the state court while in attendance upon this court as a party or witness, the question would have been squarely presented whether another court would have the right thus to deprive this court of his testimony, and to interfere to that extent with the conduct of our business. Two cases in Pennsylvania seem to be in direct conflict upon this point. Com. v. Hambright, 4 Serg. & R. 150; U.S. v. Edme, 9 Serg.& R. 147.

In Parker v. Hotchkiss, 1 Wall.Jr. 269, Hotchkiss, the defendant, who was a non-resident, was attending the federal court as a party interested in a suit brought by Parker. Parker, having been non-suited, issued a summons upon the same day, and served it upon Hotchkiss at his lodgings. The service was set aside as a violation of his privilege; the only question discussed being whether the privilege extended to writs of summons as well as to writs of capias. There was nothing exceptional in this application, since it is a matter of every-day occurrence for courts to set aside service of their own process in favor of a privileged party. Person v. Grier, 66 N.Y. 124; Matthews v. Tufts, 87 N.Y. 568; Halsey v. Stewart, 4 N.J.Law, 366; Mountague v. Harrison, 3 C.B. (N.S.) 292; Henegar v. Spangler, 29 Ga. 217; Miles v. McCullough, 1 Bin. 77.

In re Healey, 53 Vt. 694, was a case similar to the one under consideration, except that the process was issued by a justice of the peace against a party to a suit in a county court of Vermont. The court held that if the writ had been made returnable to the county court while the former case was pending, it would have been dismissed on motion, and that as the court could not exercise authority directly over the justice's case, it ought to apply the only remedy left which was to punish the plaintiff in the justice's court for contempt. This is the strongest case to which our attention has...