Pullman's Palace-Car Co. v. Washburn

• Decision Date: 08 March 1895
• Docket Number: 336.
• Parties: PULLMAN'S PALACE-CAR CO. v. WASHBURN.
• Court: U.S. District Court — District of Massachusetts

66 F. 790

PULLMAN'S PALACE-CAR CO. v. WASHBURN.

No. 336.

United States Circuit Court, D. Massachusetts.

March 8, 1895

Johnson & Underwood, for plaintiff.

Freedom Hutchinson, for defendant.

PUTNAM Circuit Judge.

The pith of the statute by virtue of which the indorsement of the writ in the original cause was made by the defendant in this suit, as found in Public Statutes of Massachusetts (chapter 161, Sec. 24), is as follows:

'Original writs, * * * in which the plaintiff is not an inhabitant of the commonwealth, shall, before entry thereof, be indorsed by some sufficient person who is such inhabitant. * * * Every indorser, in case of avoidance or inability of the plaintiff, shall be liable to pay all costs awarded against the plaintiff, if the suit therefor is commenced within one year after the original judgment.'

The present suit is by scire facias, issued out of this court against the indorser. The original writ was brought in the state court, and removed to this court on the petition of the Pullman's Palace-Car Company, the present plaintiff, and defendant in the original suit. The petition for the removal was filed in the state court July 12, 1889, and failed to set out sufficient jurisdictional facts touching the Pullman's Palace-car Company. We are not furnished with the other papers which were on file in the state court when or before the removal was effected.

The grounds of defense are as follows: First, that the indorser's liability does not include the costs which accrued in the circuit court; second, that, as it appears on the face of the declaration in the present cause that the matter in dispute is less than the sum or value of $2,000 this court has no jurisdiction; third, that the present defendant can take advantage in this suit of the want of proper jurisdictional allegations in the petition for removal.

We think there is no difficulty in regard to the first point of defense. The defendant in this case voluntarily assumed his responsibility, and, by the terms of the statute covering the indorsement, he voluntarily made himself 'liable to pay all costs awarded against the plaintiff. ' The defendant overlooks the fact, when urging that there is no law or rule of this court which creates against him a liability for the costs claimed in this case, that the liability comes from no rule or law of any court, but from the contract of the parties. There is nothing in the terms of the obligation assumed, or in the substance of the subject-matter, which leads to any other construction of the obligation than that it related to all costs in the suit. The fact that the case was transferred to the circuit court did not change the identity of the suit. It remained the same throughout. The defendant in this case having voluntarily assumed an obligation, plain and simple in its terms, he ought not to be discharged from it, unless there is something in the condition of the litigation arising from the removal which makes it necessary that he should be. We see nothing of that character. It is true that our old rule 40, which was in force when this suit was removed, and which has been succeeded by the present rule 6, provided for security for costs in this court. But the rule, in the first place, makes it optional for the defendant to ask for such security; and further, whether the security shall be ordered depends on the exercise of judicial discretion. It is not to be assumed that this qualified provision for security deprives a defendant of an absolute right, given him by statute, and vested in him before a suit is removed. If it applies at all to suits which are removed by a defendant, which we need not consider, it should be regarded as an optional cumulative remedy, with reference to which the court, in the exercise of judicial discretion, will give due consideration to the fact that security has already been obtained by an indorsement of the writ. All doubts arising from this rule are removed by the provision of the act of March 3, 1875, c. 137, Sec. 4 (18 Stat. 471), to the effect that 'all bonds, undertakings, or securities given by either party in the suit prior to its removal, shall remain valid and effectual notwithstanding such removal. ' This has clearly not been repealed by subsequent legislation, and is of the broadest application. No term can be more sweeping in this connection than the word 'undertakings,' and it clearly covers the indorsement in this case. Therefore, if the rule referred to could be assumed to have the effect of discharging the liability of the indorser, it would, to that extent, be invalid as conflicting with the law. It is true this statute leaves it to be ascertained what are the nature and extent of the undertaking, so that if the statutory indorsement, by its proper construction, covers only costs in the state court, it would fall so far as costs in the circuit court are concerned. That there is no reason for thus limiting its plain and simple terms we have already remarked.

Also, the second proposition in defense, we think, there is no difficulty in meeting. From the earliest reported cases in Massachusetts, proceedings against the statutory indorsers of writs have been almost universally by scire facias. The appropriateness of this is apparent when it is considered that every allegation involved is a matter of record in the court from which the scire facias issues, except that of the genuineness of the signature of the alleged indorser. Of course, we are considering only the class of writs of scire facias which issue on matters of judicial record in courts of common law. In McGee v. Barber, 14 Pick. 212, Chief Justice Shaw, on page 215, referring to scire facias against an indorser, said it is clearly analogous to that against bail, and described the writ issuing against an indorser as a judicial one. Indeed, in all respects this proceeding is in harmony with the definition of the writ of scire facias found in 8 Bac.Abr.p. 598, as follows:

'Scire facias is deemed a judicial writ, and founded on some matter of record, as judgments, recognizances, and letters patent, on which it lies to enforce the execution of them or to vacate or set them aside.'

It is true that, unlike some other judicial writs,-- as, for example, the ordinary writs of execution,-- this writ of scire facias is so far in the nature of an original that the defendant may plead to it; so that the proceeding is considered as an action, and is embraced in a release of actions. But it is said on the highest authority that, when it is founded on a recognizance, its purpose is, as in cases of judgments, to have execution, and, although it is not a continuation of a former suit as in the case of an execution, yet, not being the commencement and foundation of an action, it is not an original, but a judicial, writ, and, at most, is only in the nature of an original action. It can lie only out of the court where the recognizance is entered of record, or the court to which the same has been removed, as in the case before us. These expressions, it is to be noticed, are guarded with the words 'in the nature of an original writ. ' At common law, the distinction between original and judicial writs was of such a substantial character that no degree of similarity touching the proceedings following their issue was sufficient to confound them. The original writ always issued from the chancery. Blackstone says (3 Bl.Comm.p. 273) it was a 'maxim introduced by the Normans that there should be no proceedings in common pleas before the king's justices without his original writ, because they held it unfit that these justices, being only the substitutes of the crown, should take cognizance of anything but what was thus expressly referred to their judgment. ' It therefore follows that, as this particular writ cannot initiate litigation, it only marks a stage in the course of proceedings already commenced, in whatever terms that stage may be characterized. It follows, further, that proceedings by scire facias of the character which we are considering fall into the class commonly known in the language of the federal courts as ancillary.

It is true that in Society v. Ford, 114 U.S. 635, 5 Sup.Ct. 1104, it was held that an action of debt on an ordinary judgment of a circuit court does not raise any question under the laws of the United States, and would not fall within the jurisdiction of the circuit courts without proper diverse citizenship; but an action of debt was, at common law, commenced by a writ out of chancery, so it does not afford us any guide with reference to scire facias. The liberal construction given by the supreme court to the word 'ancillary' in this connection is illustrated by Gwin v. Breedlove, 2 How. 29, where it was held that an attachment against a marshal to compel him to bring money into court is not a new suit, but an incident of the prior one; by Dietzsch v. Huidekoper, 103 U.S. 494, where it was held that the circuit court might, on a bill brought for that purpose, enjoin a suit in the state court on a replevin bond given in a replevin suit removed to the circuit court, and that the bill was ancillary; by Krippendorf v Hyde, 110 U.S. 276, 4 Sup.Ct. 27, and other cases of the same class, where the circuit court has taken jurisdiction to determine the title to property attached on its writ, or otherwise under its control; by Pacific R. Co. of Missouri v. Missouri Pac. Ry. Co., 111 U.S. 505, 4 Sup.Ct. 583, where a bill was entertained to set aside a former decree of the circuit court, and held to be ancillary; by Dewey v. Coal Co., 123 U.S. 329, 8 Sup.Ct. 148, where proceedings to set aside a conveyance by persons charged with a debt in the same court were held to be ancillary; by Johnson v. Christian, ...