M'Kee v. Coffin

• Decision Date: 06 June 1886
• Parties: McKEE and others v. COFFIN, Assignee.
• Court: Texas Supreme Court

1 S.W. 276

McKEE and others v. COFFIN, Assignee.

Supreme Court of Texas.

June 6, 1886.

Appeal from Grayson county.

Trespass de bonis for a stock of goods claimed by plaintiff, as assignee for the benefit of creditors, and claimed by defendant, as United States marshal, under attachments in favor of the assignor's creditors. Judgment for plaintiff, and defendant appeals.

Alexander White and Hare & Head, for appellants, J. A. McKee and others. Cowles & Story, for appellee, A. H. Coffin, Assignee.

STAYTON, J.

This action was brought by the appellee to recover the value of certain property alleged to have been illegally taken from his possession and converted by the defendant McKee. The appellee asserts title through an assignment made by S. W. and W. G. Kniffin, for the benefit of their creditors, under the statutes regulating assignments for that purpose approved March 24, 1879. The defendant McKee admitted the seizure, and attempted to justify under the fact that he made the seizure as marshal for the United States for the Northern district of Texas, under an attachment which issued from the circuit court of the United States at the suit of Fish Bros. & Co. against the firm of Kniffin Bros., which was composed of S. W. and W. G. Kniffin, who were engaged, prior to the assignment, in a mercantile business at Denison, Texas. McKee also alleged that the assignment through which the plaintiff claimed was invalid on several grounds, and that the property was subject to the attachment. Fish Bros. & Co. sought to intervene in the cause, and asserted that before the marshal levied their attachment he required them to give to him a bond of indemnity, which they did; and that since the institution of this action the marshal had notified them of its pendency, and of his desire for them to defend it, and had further noticed them of his intention to look to them for indemnity against any judgment which might be rendered in this cause against him. They also set up the pendency of their action against Kniffin Bros. in the circuit court of the United States, and gave a statement of the cause of action in that case, as had the marshal in his answer. The court below refused to permit Fish Bros. & Co. to intervene, after which they filed their petition and bond to remove the cause to the circuit court of the United States, they averring that they were citizens of the state of Wisconsin. Their petition for removal was overruled. The defendant McKee also filed a petition and bond for removal of the cause to the circuit court of the United States, which was also overruled. The sole ground upon which McKee sought to remove the cause to the federal court was that he was United States marshal for the Northern district of Texas, and as such marshal levied the attachment when issued out of the circuit court of the United States.

It is stated that the attachment issued under and by virtue of a law of the United States, and that it only authorized the seizure of the property of the persons who composed the firm of Kniffin Bros.; but neither the pleadings, nor the petition for reversal, aver that the suit is one arising under the laws of the United States, nor that the defendant has a defense arising under such laws. If the attachment only authorized the seizure of such property as belonged to S. W. and W. G. Kniffin, or to either of them, then the seizure of the property of some other person under it made the marshal, as would it any other officer, simply a trespasser. There is no question raised as to the official character of McKee, nor as to the validity of the writ under which the seizure was made. The sole question is as to his liability for a seizure, under a valid writ, of property which it is claimed the writ did not authorize him to seize. It has been held that, in an action against a marshal of the United States and the sureties upon his bond, for the seizure of a stock of goods under proceedings in bankruptcy, the action, being on the bond, was a suit of a civil nature, arising under the constitution and laws of the United States, which might be removed from a state court to a federal court. Feibelman v. Packard, 109 U. S. 421; S. C. 3 Sup. Ct. Rep. 289. The same ruling, in effect, was made in McKee v. Brooks, 64 Tex. 255. The case before us, however, presents no such question; but presents the simple question whether, in a suit brought against a person who was United States marshal, to recover damages for an illegal seizure of property under an attachment that did not authorize the seizure, he is entitled, simply because he was marshal, to remove the case from the state to the federal court. If so, it cannot be because the suit is one arising under the constitution or laws of the United States, and must be upon the sole ground that the person who holds such an office, if he so elects, is entitled to have his cause tried in a federal court.

We are aware of no law which confers such right.

It has been thought proper by congress to give to officers appointed under or acting by authority of the revenue laws of the United States, and under laws intended to secure to all the equal enjoyment of the elective franchise, the right to a trial in a federal court, if claimed. Rev. St. U. S. § 643. Under this statute it was held that while a United States marshal and deputy-marshal were not officers appointed under the revenue laws of the United States, yet that they were entitled to remove a cause pending against them in a state court to a federal court, if the act which is made the basis of the action be one done under the authority of a revenue law of the United States. Davis v. South Carolina, 107 U. S. 597; S. C. 2 Sup. Ct. Rep. 636. This was not because the defendant was a marshal or deputy-marshal, but because of the fact that he was acting under the revenue laws. The fact that the right to remove from a state court to a federal court is given to those persons whose duty it is to enforce named laws, or who may be appointed under them, strongly evidences the intention of congress that only those...