The Disconto Gesellschaft v. Augustus Umbreit

• Decision Date: 24 February 1908
• Docket Number: No. 63,63
• Citation: 52 L.Ed. 625,208 U.S. 570,28 S.Ct. 337
• Parties: THE DISCONTO GESELLSCHAFT, Plff. in Err., v. AUGUSTUS C. UMBREIT
• Court: U.S. Supreme Court

208 U.S. 570

28 S.Ct. 337

52 L.Ed. 625

THE DISCONTO GESELLSCHAFT, Plff. in Err.,

v AUGUSTUS C. UMBREIT.

No. 63.

Argued December 10, 11, 1907.

Decided February 24, 1908.

Mr. F. C. Winkler, Messrs. Winkler, Flanders, Bottum, & Fawsett for plaintiff in error.

[Argument of Counsel from pages 570-573 intentionally omitted] Mr. Joseph B. Doe and Augustus C. Umbreit in propria persona for defendant in error.

[Argument of Counsel from pages 573-574 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

The Disconto Gesellschaft, a banking corporation of Berlin, Germany, began an action in the circuit court of Milwaukee county, Wisconsin, on August 17, 1901, against Gerhard Terlinden and at the same time garnisheed the First National Bank of Milwaukee. The bank appeared and admitted an indebtedness to Terlinden of $6,420. The defendant in error Umbreit intervened and filed an answer, and later an amended answer.

A reply was filed, taking issue upon certain allegations of the answer, and a trial was had in the circuit court of Milwaukee county, in which the court found the following facts:

'That on the 17th day of August, 1901, the above-named plaintiff, the Disconto Gesellschaft, commenced an action in this court against the above-named defendant, Gerhard Terlinden, for the recovery of damages sustained by the tort of the said defendant, committed in the month of May, 1901; that said defendant appeared in said action by A. C. Umbreit, his attorney, on August 19, 1901, and answered the plaintiff's complaint; that thereafter such proceedings were had in said action that judgment was duly given on February 19, 1904, in favor of said plaintiff, Disconto Gesellschaft, and against said defendant, Terlinden, for $94,145.11 damages and costs; that $85,371.49, with interest from March 26, 1904, is now due and unpaid thereon; that at the time of the commencement of said action, to wit, on August 17, 1901, process in garnishment was served on the above-named garnishee, Frist National Bank of Milwaukee, as garnishee of the defendant Terlinden.

'That on August 9, 1901, and on August 14, 1901, a person giving his name as Theodore Grafe deposited in said First National Bank of Milwaukee the equivalent of German money aggregating $6,420.00 to his credit upon account; that said sum has remained in said bank ever since, and, at the date hereof, with interest accrued thereon, amounted to $6,969.47.

'That the defendant Gerhard Terlinden and said Theodore Grafe, mentioned in the finding, are identical and the same person.

'That the interpleaded defendant, Augustus C. Umbreit, on March 21, 1904, commenced an action in this court against the defendant Terlinden for recovery for services rendered between August 16, 1901, and February 1, 1903; that no personal service of the summons therein was had on the said defendant; that said summons was served by publication only and without the mailing of a copy of the summons and of the complaint to said defendant; that said defendant did not appear therein; that on June 11, 1904, judgment was given in said action by default in favor of said Augustus C. Umbreit and against said defendant Terlinden for $7,500 damages, no part whereof has been paid; that at the time of the commencement of said action process of garnishment was served, to wit, on March 22 1904, on the garnishee, First National Bank of Milwaukee, as garnishee of said defendant Terlinden.

'That the defendant Terlinden at all the times set forth in finding No. 1 was and still is a resident of Germany; that about July 11, 1901, he absconded from Germany and came to the state of Wisconsin and assumed the name of Theodore Grafe; that on August 16, 1901, he was apprehended as a fugitive from justice upon extradition proceedings duly instituted against him, and was thereupon extradited to Germany.

'That the above-named plaintiff, the Disconto Gesellschaft, at all the times set forth in the findings was, ever since has been, and still is, a foreign corporation, to wit, of Germany, and during all said time had its principal place of business in Berlin, Germany; that the above-named defendant, Augustus C. Umbreit, during all said times was and still is a resident of the state of Wisconsin.

'That on or about the 27th day of July, 1901, proceedings in bankruptcy were instituted in Germany against said defendant Terlinden, and Paul Hecking, appointed trustee of his estate in such proceedings on said date; that thereafter, and on or after August 21, 1901, the above-named plaintiff, the Disconto Gesellschaft, was appointed a member of the committee of creditors of the defendant Terlinden's personal estate, and accepted such appointment; and that the above-named plaintiff, the Disconto Gesellschaft, presented its claim to said trustee in said bankruptcy proceedings; that said claim had not been allowed by said trustee in January, 1902, and there is no evidence that it has since been allowed; that nothing has been paid upon said claim; that said claim so presented and submitted is the same claim upon which action was brought by the plaintiff in this court and judgment given, as set forth in finding No. 1; that said action was instituted by said plaintiff, the Disconto Gesellschaft, through the German consul in Chicago; and that the steps so taken by the plaintiff, the Disconto Gesellschaft, had the consent and approval of Dr. Paul Hecking as trustee in bankruptcy, so appointed in the bank- ruptcy proceedings in Germany, and that after the commencement of the same the plaintiff, the Disconto Gesellschaft, agreed with said trustee that the moneys it should recover in said action should form part of the said estate in bankruptcy and be handed over to said trusted; that, among other provisions, the German bankrupt act contained the following: 'Sec. 14. Pending the bankruptcy proceedings, neither the assets nor any other property of the bankrupt are subject to attachment or execution in favor of individual creditors."

Upon the facts thus found the circuit court rendered a judgment giving priority to the levy of the Disconto Gesellschaft for the satisfaction of its judgment out of the fund attached in the hands of the bank. Umbreit then appealed to the supreme court of Wisconsin. That court reversed the judgment of the circuit court, and directed judgment in favor of Umbreit, that he recover the sum garnisheed in the bank. 127 Wis. 651, 115 Am. St. Rep. 1063, 106 N. W. 821. Thereafter a remittitur was filed in the circuit court of Milwaukee county and a final judgment rendered in pursuance of the direction of the supreme court of Wisconsin. This writ of error is prosecuted to reverse that judgment. At the same time a decree in an equity suit, involving a fund in another bank, was reversed and remanded to the circuit court. This case had been heard, by consent, with the attachment suit. With it we are not concerned in this proceeding.

No allegation of Federal rights appeared in the case until the application for rehearing. In this application it was alleged that the effect of the proceedings in the state court was to deprive the plaintiff in error of its property without due process of law, contrary to the 14th Amendment, and to deprive it of certain rights and privileges guaranteed to it by treaty between the Kingdom of Prussia and the United States. The supreme court of Wisconsin, in passing upon the petition for rehearing and denying the same, dealt only with the alleged invasion of treaty rights, overruling the contention of the plaintiff in error. 127 Wis. 676, 115 Am. St. Rep. 1063, 106 N. W. 821. It is well settled in this court that it is too late to raise Federal questions review- able here by motions for rehearing in the state court. Pim v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322; Fullerton v. Texas, 196 U. S. 192, 49 L. ed. 443, 25 Sup. Ct. Rep. 221; McMillen v. Ferrum Min. Co. 197 U. S. 343, 347, 49 L. ed. 784, 787, 25 Sup. Ct. Rep. 533; French v. Taylor, 199 U. S. 274, 278, 50 L. ed. 189, 192, 26 Sup. Ct. Rep. 76. An exception to this rule is found in cases where the supreme court of the state entertains the motion and expressly passes upon the Federal question. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Leigh v. Green, 193 U. S. 79, 48 L. ed. 623, 24 Sup. Ct. Rep. 390.

Conceding that this record sufficiently shows...