Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co.

Decision Date28 October 1904
Docket Number1,826.
Citation133 F. 267
CourtU.S. Court of Appeals — Eighth Circuit

This was a suit, by Hatcher against the Hendrie & Bolthoff Manufacturing & Supply Company and the International Trust Company, to subject the proceeds of a sale of attached property to the satisfaction of a judgment rendered in the action in which the writ of attachment was issued. From a decree sustaining a demurrer to and dismissing the bill, the complainant appealed.

Briefly stated, the allegations of the bill are as follows Complainant is a citizen of Colorado, and defendants are corporations existing under the laws of that state. January 23, 1896, complainant commenced an action in the district court of Mineral county, Colo., against the United Leasing Company and the United Mines Company, to recover from the leasing company the purchase price of materials furnished to it for the working of certain mining claims held by it under a lease from the mines company, and to enforce a mechanics' lien upon these claims. February 21, 1896, the action was removed by the defendants into the court below on the ground of diversity of citizenship. The case was there proceeded with as a suit in equity, and complainant obtained a decree against the leasing company for the purchase price of the materials July 18, 1896, but the mechanics' lien branch of the action ultimately failed. United Mines Co v. Hatcher, 25 C.C.A. 46, 79 F. 517. When the action was commenced a writ of attachment against the property of the leasing company was regularly sued out and served upon the Amethyst Mining Company, as garnishee, then in possession of a Knowles compound pump, the property of the leasing company and being used by the garnishee in the tenth level of its mine. The garnishee answered that it had the pump in its possession, and had received it from the leasing company, but was informed that it was the property of the Hendrie &amp Bolthoff Manufacturing & Supply Company. February 27, 1896, after the removal of the action into the court below, the garnishee removed the pump from its mine, and delivered it into the custody of the sheriff of Mineral county, the officer who had served the writ. Other like writs of attachment had been issued in separate actions commenced in the state court February 1 and 6, 1896, by other creditors of the leasing company, and these writs had also been served upon the Amethyst Company as garnishee. The sheriff, in accepting possession of the pump from the garnishee, received it under the several writs of attachment for the benefit of the several attaching creditors, including complainant. The pump was subsequently sold under an amicable arrangement with the Hendrie & Bolthoff Company, whereby the proceeds were placed in the custody of the International Trust Company, to stand in all respects in place of the pump. Proceedings upon an intervening petition of the Hendrie & Bolthoff Company, filed July 27, 1896, in one of the actions in the state court, to which complainant was not made a party, resulted in a decision by the Supreme Court of the state, December 24, 1901, to the effect that, as against creditors whose writs of attachment were served upon the garnishee subsequently to January 25, 1896, the intervener became the owner of the pump under a purchase from the leasing company made on that date. Hendrie & Bolthoff Co. v. Collins, 29 Colo. 102, 67 P. 164. This Purchase was made two days after complainant's writ was served, but prior to the service of the writs of other creditors. Notwithstanding the removal of complainant's action into the court below, the district court of Mineral county at all times expressly recognized the right of complainant under his writ of attachment served upon the garnishee before the removal, and, with complainant's acquiescence, proceeded upon the theory that complainant and the other attaching creditors were entitled, under the statutes of the state, to prorate the proceeds of the sale of the pump. The proceeds arising from the sale of other property attached in like manner were so distributed, the court recognizing the complainant's right to participate in the distribution as being established by the judgment or decree recovered by it in the court below after the removal. No proceedings of any kind were taken by the Hendrie & Bolthoff Company to question or avoid the lien acquired by complainant under his writ of attachment, and no judgment in favor of an attaching creditor now remains in the state court, under which a claim is or can be made upon the proceeds of the sale of the pump. The leasing company is insolvent, and these proceeds constitute the only property out of which the balance due upon complainant's judgment can be satisfied. The bill prayed that defendants be required to bring into court and account for the proceeds of the sale of the pump, with any interest accrued thereon, to the end that complainant's judgment might be satisfied therefrom, should his right thereto under the attachment be sustained. The suit was commenced February 28, 1902, a little more than three months after the decision of the Supreme Court establishing the superiority of the claim of the Hendrie & Bolthoff Company over those of the attaching creditors other than complainant.

John R. Smith and Albert L. Moses, for appellant.

Robert D. Thompson (John M. Waldron, on the brief), for appellees.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

VAN DEVANTER, Circuit Judge, after stating the case as above, .

When an action or suit in a state court is removed into a Circuit Court of the United States, the latter takes the case in the condition in which it existed in the state court at the time of the removal; and, if a lien or other right has been obtained by either party by any proceeding had in the case prior to the removal, power to protect and enforce that lien or right after the removal exists in the Circuit Court, in like manner as if it had been obtained by a proceeding in that court. Kern v. Huidekoper, 103 U.S. 485, 491 26 L.Ed. 497; Duncan v. Gegan, 101 U.S. 810, 812, 25 L.Ed. 875; Chicago, etc., Bridge Co. v. Anglo-American, etc., Co. (C.C.) 46 F. 584, 590. The lien obtained by the attachment proceeding in the state court was not lost or terminated by the removal of the action to the Circuit Court, and when, shortly thereafter, the garnishee delivered the pump into the custody of the sheriff who had served the writ, that officer received the pump charged with an enforceable lien for the satisfaction of any judgment which the complainant should obtain in the Circuit Court, in like manner as it would have been charged with a lien for the satisfaction of a judgment obtained in the state court if there had been no removal. Section 4, Act March 31, 1875, 18 Stat. pt. 3, c. 137, p. 470.

A suit in equity in a circuit court to give effect to the proceedings, judgment, or decree in a former action or suit in that court, or to secure the fruits and benefits thereof, or to obtain any relief growing out thereof and having direct reference thereto, is not an original, but a dependent and ancillary, suit, and may be maintained as an incident to the jurisdiction already vested, without regard to the citizenship or residence of the parties. So a suit is dependent and ancillary, the object of which is to enforce an attachment lien obtained in a former action in the same court, and to subject the attached property, or the proceeds of its sale, to the satisfaction of a judgment recovered in that action. Such a suit is supplementary merely to the former action, and is a continuation thereof, so far as the question of jurisdiction is concerned. Freeman v. Howe, 24 How. 450, 460, 16 L.Ed. 749; Riggs v. Johnson Co., 6 Wall. 166, 187, 18 L.Ed. 768; Jones v. Andrews, 10 Wall. 327, 333, 19 L.Ed. 935; Dietzsch v. Huidekoper, 103 U.S. 494, 498, 26 L.Ed. 354; Krippendorf v. Hyde, 100 U.S. 276, 4 Sup.Ct. 27, 28 L.Ed. 145; Pacific R.R. v. Missouri, etc., Co., 111 U.S. 505, 522, 4 Sup.Ct. 583, 29 L.Ed. 498; Gumbel v. Pitkin, 124 U.S. 131, 8 Sup.Ct. 379, 31 L.Ed. 374; Root v. Woolworth, 150 U.S. 401, 14 Sup.Ct. 136, 37 L.Ed. 1123; Central National Bank v. Stevens, 169 U.S. 432, 464, 18 Sup.Ct. 403, 42 L.Ed. 807; Julian v. Central Trust Co., 193 U.S. 93, 113, 24 Sup.Ct. 399, 48 L.Ed. 629; Lamb v. Ewing, 4 C.C.A. 320, 324, 54 F. 269; Maithland v. Gibson (C.C.) 79 F. 136.

The fact that the proceeds of the sale of the attached property are not in the actual custody of the Circuit Court does not make the present suit an original one. The effect of the removal of the former action into that court was to bring the property potentially within its jurisdiction and custody, and the purpose of the present suit is to have this jurisdiction exerted over the proceeds of the sale of the property. Whether the complainant's right to invoke the exercise of this jurisdiction has been waived or lost by laches is another question. While suits to enforce a claim to or lien upon property already in the court's custody are dependent and ancillary, such custody is merely one of several distinct grounds of ancillary jurisdiction, and not an essential requisite to its existence and exercise in all cases.

The appellees, referring to Mills' Ann. Code Colo. Secs. 124 125, insist that no lien upon the pump was obtained by the attachment proceeding, because no judgment was entered against the garnishee, requiring him to deliver the pump into the custody of the sheriff, and because no return was made of the delivery which was in fact made. The only purpose of such a judgment would have been to compel the garnishee to deliver the pump to the sheriff, and, as this was voluntarily done, as expressly...

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