Sowles v. Witters

• Decision Date: 27 May 1891
• Citation: 46 F. 497
• Court: U.S. District Court — District of Vermont
• Parties: SOWLES v. WITTERS.

46 F. 497

SOWLES v. WITTERS.

United States Circuit Court, D. Vermont.

May 27, 1891

Edward A. Sowles, for oratrix.

Chester W. Witters, for defendant.

WHEELER J.

This suit was brought in a court of chancery of the state, to relieve the title to land which had been attached and levied upon by the marshal, and sold to the defendant on processes of this court, and attached and levied upon by a sheriff on processes of a state court against the same defendant, and sold to the oratrix, from the cloud created by the marshal's proceedings, which are alleged to be defective for irregularities in them. It has been brought into this court as arising under the laws of the United States, and now been heard on a motion to remand it to the state court. Section 916 of the Revised Statutes of the United States has provided that a party recovering judgment in these courts--

'Shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such courts.'

These proceedings of the marshal upon the execution were similar to those provided by a law of the state enacted in 1884, which was adopted by the eleventh of the general rules adopted by this court at the May term, 1885. They could be had only in similarity with those of the state law in force when section 916 was first enacted, which was in 1872; or with those enacted by the state afterwards, which had been adopted by general rules of the court. Lamaster v. Keeler, 123 U.S. 376, 8 S.Ct. 197. A case arises under the laws of the United States whenever the right of a party, whether plaintiff or defendant, depends upon a correct construction of them, in whole or in part. Tennessee v. Davis, 100 U.S. 257. The foundation of the case of the oratrix as made by her bill of complaint is the failure of the marshal to follow the laws of his guidance in his proceedings. Whether he has so followed those laws or not depends upon a correct construction of them. The decision upon this motion must depend upon the question whether they are laws of the United States, or of Vermont. The marshal was an officer of the United States, the execution was a process of the United States, and a natural supposition would be that the laws of the United States would govern him in serving it. The laws of the state are invoked for his guidance, and therefore the suit is said to arise under those laws, and not under the laws of the United States. In Wayman v. Southard, 10 Wheat. 1, counsel for the defendant argued that congress had no power over executions issued on judgments obtained by individuals, and that the authority of the states on this subject remained unaffected by the constitution; that the government of the United States could not by law regulate the conduct of its officers in the service of executions on judgments rendered in the federal courts, but that the state legislatures retained complete authority over them. As to this point Mr Chief Justice MARSHALL said:

'The constitution concludes its enumeration of granted powers with a clause authorizing congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment. That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer.'

Further on in the same opinion he said:

'The question really adjudged is whether the laws of

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