Hinds v. Keith

• Decision Date: 06 March 1893
• Docket Number: 23.
• Parties: HINDS et al. v. KEITH.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F. 10

HINDS et al. v. KEITH.

No. 23.

United States Court of Appeals, Fifth Circuit.

March 6, 1893

[Copyrighted Material Omitted]

H. C Tompkins and Thomas R. Roulhac, (R. W. Walker and Humes Sheffey & Speake, on the brief,) for plaintiffs in error.

R. C. Brickell, J. E. Brown, and D. D. Shelby, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and TOULMIN, District Judge.

TOULMIN District Judge.

This action was brought by Pope W. Keith, the defendant in error, against James M. Hinds, as United States marshal, and his sureties on his official bond, the plaintiffs in error, to recover damages for an alleged illegal seizure of a stock of goods which said Keith had purchased from one C. M. Fennell, and on which certain writs of attachment against Fennell were levied by the marshal, and which were sold under the levy. The defendants justified under the attachments, alleging that the goods belonged to Fennell at the time of the levy, and also attacking the validity of Keith's purchase on the ground of fraud. The stock of goods was at the time of the levy in the possession of Keith, who claimed to have purchased them from Fennell. The suit was commenced in the circuit court of Jackson county, state of Alabama. Process was issued, and served on the plaintiffs in error. They severally appeared, and pleaded in abatement that the suit was not for the recovery of real property, or for the possession thereof, or for a trespass thereto, and that they were not resident freeholders of Jackson county, but were freeholders or householders in the state, having a permanent residence in a county other than said county of Jackson. Having filed these pleas, the defendants, now plaintiffs in error, filed a petition for the removal of the cause of the circuit court of the United States for the northern district of Alabama. The cause having reached the circuit court of the United States, the pleas in abatement were overruled by the court. The case went to trial on its merits, and a verdict was rendered for the plaintiff, now the defendant in error.

The first assignment of error is that the court erred in overruling these pleas.

The pleas in abatement were of a mere personal privilege, exempting the defendants from suit in other than local actions, without the county of their residence, and is a creature of the statute of the state. The case was a removable one, and it was, on the petition of the defendants, removed to the federal court. The filing of the petition for removal was not such an appearance in the state court as to waive the defendants' exception to the jurisdiction in that court in case their attempt to remove had been unsuccessful; but the actual removal of the case to the federal court subjected the defendants to the jurisdiction of that court, and operated to give it jurisdiction, for the purpose of trial and final disposition of the case, and was a waiver or relinquishment of the privilege claimed by the pleas in abatement. Bushnell v. Kennedy, 9 Wall. 387; Ahlhauser v. Butler, 50 F. 705. There is a statute which provides that 'there shall be no reversal in the supreme court or in a circuit court upon a writ of error, for error in ruling on any plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact.' Rev. St. § 1011. The jurisdiction of the court referred to in the exception in this statute seems to relate to jurisdiction as to subject-matter, and clearly shows that pleas in abatement are not to be favored.

The court did not err in overruling defendants' objection to Keith's evidence in reference to the transactions with Fennell. Rev. St. § 858; Goodwin v. Fox, 129 U.S. 602, 9 S.Ct. 367. But it was virtually conceded in the argument of counsel for the plaintiffs in error that there was no error in the ruling of the court on this point.

There are numerous assignments of error relating to the rulings of the court below touching the admission and rejection of evidence, and the giving and refusing of instructions to the jury. There was a good deal of evidence admitted against the objection of the defendants which, in our judgment, was wholly immaterial, and could not affect the real issues in the case one way or the other. The admission of such evidence was therefore harmless. There are, however, some exceptions to the ruling of the court on the admission and rejection of evidence which we will briefly notice. We think that the court erred in permitting Keith to testify that he acted in good faith and honesty in making the purchases from Fennell, and that he had no purpose to aid him in defrauding his creditors. The courts in many of the states have held that in cases in which knowledge, motive, or intent may be imputed to parties by circumstantial evidence, they are permitted to testify directly as to the existence of such motive or intent, and the ruling of the court below was in harmony with these decisions. But we think the sounder principle and better rule is to exclude such evidence. The supreme court of Alabama has declared that the rule is well settled in that state that a 'party certifying for himself should not be permitted to state the motive or intention with which he did an act; that such motive or intention is an inferential fact, to be drawn by the jury from proven attendant facts and circumstances.' Burke v. State, 71 Ala. 382; Whizenant v. State, 20 Ala. 383. In actions at law in the courts of the United States the rules of evidence and the law of evidence generally of the state within which such courts are held prevail. Rev. St. § 721; Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 S.Ct. 119; Ex parte Fisk, 113 U.S. 720, 5 S.Ct. 724.

There are three exceptions to the exclusion of evidence, which are round in the forty-first, forty-second, and forty-third assignments of error. The forty-first and forty-second assignments of error are the sustaining by the court of objections to the following questions asked a witness: 'Was it not generally understood there in the community in the fall and winter of 1884 that he [Fennell] was selling goods at cost, and less than cost?' And 'from your experience as a merchant, would you or not say an ordinarily prudent business man would form a partnership with another to go into his business without inquiring as to his mercantile business, and examining his books?'

The first question was objectionable because it sought to prove by notoriety or reputation an objective fact,--a particular fact,--in which the public had no interest, and which cannot by proved in that way, (1 Greenl. Ev. 138; Shutte v Thompson, 15 Wall. 163;) and the second question called for the mere opinion of the witness,--an opinion involving a conclusion which, if material, was an inference to be drawn by the jury from circumstances which may be proven. Such evidence was inadmissible. The forty-third assignment of error is the exclusion of the evidence of the witness Shelton, which was 'that he was engaged...