Stern v. Jerome H. Remick & Co.

• Decision Date: 27 October 1908
• Citation: 164 F. 781
• Parties: STERN et al. v. JEROME H. REMICK & CO.
• Court: U.S. District Court — Southern District of New York

164 F. 781

STERN et al. v. JEROME H. REMICK & CO.

United States Circuit Court, S.D. New York.

October 27, 1908

Cohen Creevey & Richter, for plaintiffs.

House Grossman & Vorhaus (Charles Goldzier, of counsel), for defendant.

WARD Circuit Judge.

On or about October 12, 1908, the plaintiffs filed a petition for a writ directing the United States marshal to seize and hold under U.S. Rev. St. 4965 (U.S. Comp. St. 1901, p. 3414) certain copies of a song alleged to have been copyrighted by it. The marshal did seize, and now holds, the same.

October 16, 1908, a summons was issued in an action brought by the plaintiffs against the defendant, described on the face of the summons as an 'action for forfeiture of plates and copies and to recover penalties under section 4965, Rev. St. U.S. as amended. ' Subsequently on the same day an order to show cause why the writ of seizure should not be vacated was served by the defendant's attorneys. The defendant contends that the court had no jurisdiction to issue the writ of seizure because no action was pending at the time. Congress has prescribed no form of action appropriate for seizing copies subject to forfeiture and penalties under section 4965, but the Supreme Court has said that an action 'in the nature of replevin' seems to be contemplated. Bolles v. Outing Co., 175 U.S. 266, 20 Sup.Ct. 94, 44 L.Ed. 156. The common-law action of replevin could not have been contemplated because it supposes title in the plaintiff at the time of seizure, and a right in the defendant by giving a bond to retain possession of the property as his own.

The difficulty in practice has been caused by a remark of Justice Miller in Thornton v. Schreiber, 124 U.S. 613, 621, 8 Sup.Ct. 618, 622, 31 L.Ed. 577, to the effect that 'we, however, think that the word 'found' means that there must be a time before the cause of action accrues at which they are found in the possession of the defendant. ' In Falk v. Curtis Publishing Company (C.C.) 102 F. 967, affirmed 107 F. 126, 46 C.C.A. 201, because of this remark the court below held that no cause of action arose until the seizure, and therefore a suit brought before seizure was premature. Judge Hazel followed this case in Childs v. New York Times Co. (C.C.) 110 F. 527. The general rule is that a suit is commenced when the summons is taken out. 1 Cyc. 739. But section 416 of the Code of Civil Procedure provides that an action is commenced when the summons is served. It is as follows:

'416. Action to be commenced by summons; time when court acquires jurisdiction.

'A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act to be done after the granting of the provisional remedy.'

I think under section 721, Rev. St. U.S. (U.S. Comp. St. 1901, p 581), this provision of the New York law applies to a summons issuing out of this court. If so, the practice under section 4965 is made extremely simple. Plaintiff can obtain his writ of seizure and his summons at the same time, put them both in the hands of the marshal (or he may employ a private person...