Files v. Davis

• Decision Date: 12 November 1902
• Parties: FILES v. DAVIS.
• Court: U.S. District Court — Eastern District of Arkansas

118 F. 465

FILES v. DAVIS.

United States Circuit Court, E.D. Arkansas, Western Division.

November 12, 1902

Rose Hemingway & Rose and A. W. Files, for plaintiff.

Ratcliffe & Fletcher and J. A. Watkins, for defendant.

George Scott, a citizen of Missouri, instituted in this court as an action at law against A. P. Simms, W. F. Files, and the plaintiff in this case, J. T. Files, to recover money alleged to be due him from these parties, whom he charged to be partners. At the commencement of that suit he procured the issuance of a writ of attachment against the property of all the defendants, having filed the necessary affidavit and the bond as required by law, with William Farrell, who has since died intestate and the administrator of whose estate the defendant Davis is, as surety. The marshal executed the writ of attachment by seizing a stock of merchandise alleged to have been owned by and in the possession of the plaintiff in this action. Pending the attachment proceedings, the merchandise was, by order of the court, sold by the marshal and the proceeds, less the costs of sale, deposited in the registry of the court. The original suit resulted in a final judgment of dismissal as to this plaintiff, and he thereupon instituted this action on the attachment bond, claiming $9,500 damages alleged to have been sustained by him by reason of the wrongful seizure of his property under the writ of attachment. The complaint fails to show any diversity of citizenship of the parties, and the defendant demurs upon that ground to the jurisdiction of the court.

TRIEBER District Judge.

There being no diversity of citizenship alleged in the complaint the jurisdiction of this court can only be maintained upon the ground that the issues involve a federal question, or that this action is merely ancillary to the original attachment suit.

1. Does an action on an attachment bond executed in a suit pending in a national court present a federal question, within the meaning of the judiciary act? Section 6 of the act of congress of June 1, 1872 (17 Stat. 197; section 915, Rev. St. U.S.), ^[1] is as follows:

'In common-law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the state in which such court is held for the courts thereof; and such circuit or district courts may, from time to time, by general rules, adopt such state laws as may be in force in the states where they are held in relation to attachments and other process; provided, that similar preliminary affidavits or proofs, and similar security, as required by such state laws, shall be first furnished by the party seeking such attachment or other remedy.'

If the effect of this act is to make the statutes of the state regulating the affidavit and bond in attachment proceedings laws of the United States for the national courts within such state, then the jurisdiction of this court is beyond question, for plaintiff's cause of action would then be arising under the laws of the United States. Upon this ground it is now well settled that suits on bonds of the United States marshals and other federal officers are actions arising under the national laws and within the jurisdiction of the national courts. Feibelman v. Packard, 109 U.S. 421, 3 Sup.Ct. 289, 27 L.Ed. 984; Backrack v. Norton, 132 U.S. 337, to S.Ct. 106, 33 L.Ed. 377; Bock v. Perkins, 139 U.S. 628, 11 Sup.Ct. 677, 35 L.Ed. 314. An action by an internal revenue collector on the bond of his deputy may be maintained in the national courts, upon the ground that it is an action arising under the laws of the United States. Orner v. Saunders, 3 Dill. 284, Fed. Cas. No. 10,584. So it is also the settled law that actions by or against the corporations created by an act of congress may be maintained in the national courts solely upon that ground, which it is held makes the suit one arising under the constitution and laws of the United States. Railway Co. v.Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829; Supreme Lodge K.P. v. England, 36 C.C.A. 298, 94 F. 369.

Congress has frequently adopted by reference the statutes of the states as national laws, or as laws for a territory for which congress legislated directly. The act of May 17, 1884 (23 Stat. 24), providing for a civil government for Alaska, adopted the laws of the state of Oregon as the laws of that territory. The various acts establishing the national courts for the Indian Territory (25 Stat. 783, 26 Stat. 81, and 28 Stat. 693) adopted certain laws of the state of Arkansas as laws for that territory. The conformity act of June 1, 1872 (17 Stat. 197), the act prescribing the competency of witnesses in civil actions pending in the national courts (13 Stat. 351; section 858, Rev. St. U.S.), ^[2] the national election laws (Act May 31, 1870, 16 Stat. 145), and numerous other acts adopt certain laws of the states as national laws, and they have uniformly been sustained as a valid exercise of the constitutional powers of congress, and enforceable in the national courts as laws of the United States.

Perhaps the most important case on that subject is Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717, a case arising under the national election laws. It was there urged that, while congress had the power to assume the entire regulation of the election of representatives to congress, it had no constitutional power to make partial regulations intended to be carried out with regulations made by the states. But this contention was overruled by the court, the court saying:

'The objection that the laws and regulations, the violation of which is made punishable by the acts of Congress, are state laws, and have not been adopted by congress, is no sufficient answer to the power of congress to impose punishment. It is true that congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leave them as prescribed by state laws. It has only created additional sanctions for their performance, and provided means of supervision in order more effectually to secure such performance. The imposition of punishment implies a prohibition of the act punished. The state laws which congress sees no occasion to alter, but which it allows to stand, are, in effect, adopted by congress. It simply demands their fulfillment. Content to leave the laws as they are, it is not content with the means provided for their enforcement. It provides additional means for that purpose, and we think it is entirely within its constitutional power to do so. It is simply the exercise of the power to make additional regulations.' 100 U.S. 388, 25 L.Ed. 717.

In Ex parte Clarke, 100 U.S. 399, 25 L.Ed. 715, the same question was before the court. Clarke had been convicted in the national courts under the federal election laws for a violation of the state laws of Ohio in not conveying the ballot box, after it had been sealed and delivered to him for that purpose, to the county clerk, and the judgment of conviction was sustained. To the same effect are U.S. v. Gale, 109 U.S. 66, 3 Sup.Ct. 1, 27 L.Ed. 857; In re Coy, 127 U.S. 743, 8 Sup.Ct. 731, 32 L.Ed. 274; Ex parte Yarbrough, 110 U.S. 655, 4 Sup.Ct. 152, 28 L.Ed. 274; Swafford v. Templeton, 185 U.S. 487, 22 Sup.Ct. 783, 46 L.Ed. 1005. In Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 Sup.Ct. 119, 28 L.Ed. 708, it was held that the provisions of the state law disqualifying certain persons from testifying as witnesses are obligatory upon the national courts acting within that state by virtue of section 721, Rev. St. U.S., ^[3] adopting the laws of the several states as rules of decision in trials at common law in the national courts. The act of March 3, 1825 (4 Stat. 115; section 5391, Rev. St.), ^[4] adopts the criminal laws of the state for offenses committed in any place under the jurisdiction of the United States, which are not provided for by any law of the United States, and this has been held to make the state laws the same as if the act of congress had defined the offenses in the very words of the state laws. U.S. v. Coppersmith (C.C.) 4 Fed. 198, 205; Sharon v. Hill (C.C.) 24 F. 726. In Amy v. City of Watertown, 130 U.S. 301, 9 Sup.Ct. 530, 32 L.Ed. 946, the court, in construing the conformity act of 1872 (section 914, Rev. St. U.S.), ^[5] say:

'But the statute of 1872 is peremptory, and whatever belongs to the three categories of practice, pleading, and forms and modes of proceeding must conform to the state law and the practice of the state courts, except where congress itself has legislated upon a particular subject and prescribed a rule.'

To the same effect is Rush v. Newman, 7 C.C.A. 136, 58 F. 158.

For the same reason, the statutes of a state providing that, in actions of ejectment, the unsuccessful party shall be entitled to one new trial as a matter of course, have been held binding on the national courts held within such state. Smelting Co. v. Hall, 106 U.S. 86, 1 Sup.Ct. 128, 27 L.Ed. 114; Smale v. Mitchell, 143 U.S. 99, 12 Sup.Ct. 353, 36 L.Ed. 90; Mining Co. v. Campbell, 10 C.C.A. 172, 61 F. 932.

In Sowles v. Witters (C.C) 46 F. 497, that part of the conformity act of 1872 digested as section 916, Rev. St.,⁶ was before the court, and the learned judge who delivered the opinion, after quoting from the opinion of the supreme court in Ex parte Siebold, supra, concluded:

'This reasoning shows that, when a state law is adopted by or under the authority of congress, it becomes a law of the United States, and that a suit arising under such law arises under the laws of the United States.' 46 F. 499.

In Seymour v. Const. Co., 7...