United States v. Swan

• Decision Date: 05 February 1895
• Docket Number: 269.
• Citation: 65 F. 647
• Parties: UNITED STATES ex rel. MUDSILL MIN. CO. v. SWAN.
• Court: U.S. Court of Appeals — Sixth Circuit

65 F. 647

UNITED STATES ex rel. MUDSILL MIN. CO. v. SWAN.

No. 269.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

This is a petition for mandamus against Judge Swan, United States district judge for the Eastern district of Michigan, to compel him, sitting in the circuit court of the United States for that district, in equity, to take jurisdiction of a proceeding in garnishment, under the statutes of Michigan instituted by the relator, the Mudsill Mining Company, for the purpose of collecting the balance due on a decree entered in that court in favor of the relator for about $150,000. The original suit was brought by the Mudsill Mining Company against Orville A. Watrous and Stewart A. Van Dusen, to set aside the sale of a silver mine, on the ground of fraud, and to recover the purchase price paid. The circuit court dismissed the bill, and the complainant appealed to this court, where the decree of the circuit court was reversed and the cause was remanded, with instructions to enter a decree against Watrous for the amount of the purchase money received by him and interest, amounting to about $150,000 and a decree for a less sum against Van Dusen, 61 F. 163. The mandate of this court was complied with, and a proper decree entered. Shortly after the decree was entered, the attorney for the complainant filed in the circuit court, in the same cause in equity, an affidavit averring that

Williard I. Brotherton, Henry N. Watrous, and Henry W. Jennison, all of Bay City, Mich., had money and property of Orville A. Watrous in their custody, and that he was justly apprehensive of the loss of the amount due on the decree, unless a writ of garnishment should issue to the persons named. The writ was issued on the affidavit by the clerk of the court in equity, and the three garnishees, being served, appeared, and moved to quash the writ on numerous grounds, one of which was that a circuit court of the United States in equity has no jurisdiction to entertain a proceeding in garnishment under the statutes of Michigan. Upon this ground Judge Swan granted the motion, and quashed the writ in the following order (entered November 7, 1894):

'The Mudsill Mining Co., et al., Complainants, vs. Orville A. Watrous and Stewart A. Van Dusen, Principal Defendants, and Willard I. Brotherton, Henry N. Watrous, and Henry W. Jennison, Garnishee Defendants.

'On reading and filing the motion of the said garnishee defendants to quash the writ of garnishment heretofore issued in this cause, and after hearing counsel for both parties, on motion of Chester L. Collins, esq., of counsel for said garnishee defendants, it is ordered: That the writ of garnishment issued in said cause at the instance of the plaintiffs be, and the same is hereby, quashed, and held for naught. But the effect of this order is hereby suspended, pending a review of the order, until the further order of this court, directing that it become absolute.

Henry H. Swan District Judge.'

Thereupon the present petition for mandamus was filed by the Mudsill Mining Company as relator, in which, after setting out the facts as given above, and averring that the order to quash the garnishment proceeding was made because the court deemed that it had no jurisdiction to entertain it, and that the petitioner has no adequate legal remedy to secure this right save by mandamus, the relator prays that a writ may issue 'directed to the circuit court of the United States for the Eastern district of Michigan in equity, requiring said court to vacate and set aside said order of November 7, 1894, quashing the writ of garnishment in the cause above named, and directing said court to proceed with all convenient speed to the execution of such process. ' The respondent appears and answers, setting out the facts as they appear of record and as they are stated above.

John H. Bissell and Otto Kirchner, for relator.

Chester L. Collins, for respondent.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge (after stating the case as above), .

Section 12 of the act of congress of March 3, 1891 (26 Stat. 729), establishing circuit courts of appeals, provides that those courts 'shall have the powers specified in section 716 of the Revised Statutes of the United States. ' Section 716, Rev. St., provides that:

'The supreme court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.'

In so far as the writ of mandamus is necessary for the exercise of the jurisdiction of this court as conferred by law, we have no doubt of our power to issue it. Where, therefore, a circuit or district court fails to execute a mandate of this court in a cause brought here by appeal or writ of error, it is not to be questioned that we may compel its execution by mandamus. Gaines v. Rugg, 148 U.S. 228, 13 Sup.Ct. 611. It is to be observed, however, that by the fifth section of the circuit court of appeals act, appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court 'in any case in which the jurisdiction of the court is in issue. In such case the question of jurisdiction alone shall be certified to the supreme court from the court below for decision. ' By the sixth section ^[1] of the same act the circuit courts of appeal are given power 'to exercise appellate jurisdiction to review by appeal or by writ of error final decisions in the district and the existing circuit courts in all cases other than those provided for' in the fifth section. It would seem to be clear, therefore, that where a circuit court or a district court refuses to hear a cause for want of jurisdiction, and the question thus decided may be heard on certificate in the supreme court under section 5, it would not be within the power of this court by mandamus to compel such circuit or district court to take jurisdiction of the cause, but that such power is vested in the supreme court whenever remedy by appeal or writ of error on certificate is not adequate. Just what is meant by the word 'jurisdiction' in the first paragraph of section 5 has not yet been exactly defined by the supreme court. It is a term which is given a varying meaning. Thus a bill which states no ground for equitable relief is often said not to be within the jurisdiction of a court of equity, and yet it would hardly be a reasonable construction of the paragraph referred to that such a question could be carried by certificate of the circuit court direct to the supreme court. There is strong ground for thinking that the first paragraph of that section was intended to apply only to the initial questions of the jurisdiction of a United States district or circuit court, whether in law or equity, over the subject-matter and parties and not to questions whether a court of equity or of law is the proper forum for the working out of rights properly within the particular federal jurisdiction for adjudication. In the case at bar, Judge Swan refused to enforce under the statutes of Michigan the payment of a money decree by the issuance of a writ of garnishment in equity, because he conceived it not to be within the power and jurisdiction of a circuit court of the United States on its equity side to do so, but he did not deny that such a proceeding could be had on the law side of the court. Could such a question, on his certificate, be carried direct to the supreme court, under section 5 of the court of appeals act? We think not, for the reason suggested above; and, if not, then it is the subject-matter of review in this court by proper proceeding.

If an adequate remedy for Judge Swan's refusal to enforce a writ of garnishment can be had by appeal, there is no ground for the issuance of a mandamus. Ex parte Baltimore & O.R Co., 108 U.S. 566, 2 Sup.Ct. 876. This depends in part on the question whether the order quashing the writ of garnishment was a final order. It seems to us that it was, because an execution for costs could issue against the complainant in favor of the garnishees, who were, by his order, finally dismissed from the proceeding. A final decree had already been rendered in the case. This was a proceeding to enforce that by bringing in new parties against whom judgment was asked. The proceeding was dismissed, and they were entitled to their costs. In the case of Ex parte Baltimore & O.R. Co., above cited, it was sought to obtain a mandamus to compel a circuit court to take jurisdiction of a proceeding in replevin in which the circuit court had quashed the writ. It was held that error would lie, and furnished...