In re Griggs

• Decision Date: 27 May 1916
• Docket Number: 165.
• Parties: In re GRIGGS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

233 F. 243

In re GRIGGS et al.

No. 165.

United States Court of Appeals, Eighth Circuit.

May 27, 1916

James A. Brown, of Fergus Falls, Minn., and Boys, Osborn & Griggs of Streator, Ill., for petitioners.

Before HOOK, Circuit Judge, and AMIDON and VAN VALKENBURGH, District Judges.

HOOK Circuit Judge.

Counsel misconceive the limited office of the writ they sought and the effect of the opinion of this court denying their application. The situation was as follows:

The defendants resided in Illinois. As executors they had procured ancillary letters in Minnesota where part of the estate of the testator was located. The plaintiff sued them in Minnesota, both as individuals and as executors, and real property of the estate in that state was attached. Instead of contesting the attachment and the jurisdiction of the court they voluntarily entered their appearance in both capacities and gave a bond to discharge the attachment. The case was defended upon the merits, the defendants participating as individuals until the stipulation was made for their dismissal in that capacity (in effect without prejudice) and that judgment upon any verdict for plaintiff should go against them as executors. The plaintiff secured a verdict and judgment accordingly. On a writ of error obtained by the executors from this court it was held they were not liable notwithstanding the stipulation, and the cause was remanded for a new trial. The intent of the stipulation was defeated. At a subsequent term, when the case again arose in the trial court, the plaintiff moved to vacate the stipulation. Defendants appeared generally as executors and resisted the motion; as individuals they filed a special appearance and denied the jurisdiction of the court over them in that capacity. The trial court vacated the stipulation and reinstated the case against defendants as individuals. There is no question of lack of notice and opportunity to be heard upon the vacation of the stipulation, excepting that growing out of a distinction between the two capacities of the defendants. In effect they say that, while still in court as executors, they were beyond its jurisdiction as individuals.

The application now in question was for a writ of prohibition or mandamus to prevent the trial court from exercising jurisdiction over the defendants in their individual capacities. On such an application the merits of the main case are not involved, nor whether the action of the trial court is equitable or not.

The sole inquiry on such an application is whether that court was clearly without jurisdiction, not whether it was likely to commit error while exercising it. And all we held was that under the circumstances it had a right, under its power to authorize amendments, or in analogy thereto, to allow the action to proceed against defendants as individuals. What that court could properly do afterwards is another matter; it was not before us and was not decided. If the law be that the case as stated in the original petition is not sustainable against defendants in both capacities, representative and individual, a contrary course would be erroneous; but the error would not be jurisdictional. The writ of mandamus is an extraordinary remedy, and to justify its issue the absence of jurisdiction should be plain and clear.

Our opinion does not conflict with the original opinion in the main case, reported in 137 C.C.A. 189, 221 F. 381. There the defendants sought a review of the judgment rendered against them as executors, and the plaintiff asked us to amend the judgment below, so that it would stand against the defendants as individuals. Obviously that request could not be granted but what the trial court could or could not do after the case was remanded for a new trial was not before us, and there was no intention to decide in advance or to lay down a course for its procedure. The general language in that opinion to which attention is now directed was descriptive of the doctrine of Wetmore v. Karrick, 205 U.S. 141, 27 Sup.Ct. 434, 51 L.Ed. 745, which was cited. But in that case the action had come to an end by dismissal, and after what was equivalent to the expiration of the term the order of dismissal was vacated, the action was reinstated, and judgment was rendered against the defendant, without motion or proceeding to vacate, and without notice to him or process upon him. While here there was a formal proceeding, the defendants were still in court, as executors, it is true, and they had full opportunity to be heard in either or both of their dual capacities. The vital essentials of due process of law were not lacking, as in Wetmore v. Karrick, and as In re Metropolitan Trust Co.,...