v. Louis Pradt

• Decision Date: 03 January 1905
• Docket Number: No. 93,93
• Citation: 49 L.Ed. 398,196 U.S. 89,25 S.Ct. 208
• Parties: . , v. LOUIS A. PRADT, Executor of Merrit B. Atwater, Deceased, and William C. Atwater
• Court: U.S. Supreme Court

196 U.S. 89

25 S.Ct. 208

49 L.Ed. 398

M. H. COURTNEY, Appt.,

v LOUIS A. PRADT, Executor of Merrit B. Atwater, Deceased, and William C. Atwater.

No. 93.

Argued December 9, 1904.

Decided January 3, 1905.

Merrit B. Atwater, a citizen of Wisconsin, and William C. Atwater, a citizen of Illinois, were partners, and in 1898 Merrit B. died testate, having appointed Louis A. Pradt, likewise a citizen of Wisconsin, his executor. The will was duly admitted to probate in Wisconsin, and Pradt duly qualified as executor, and has been and is acting as such. William C. Atwater was one of the legatees under the will.

The Atwater Land & Lumber Company was a corporation of Wisconsin, engaged in buying, owning, holding, and selling real estate in Kentucky, and Merrit B. Atwater, at the time of his death, owned stock in that corporation, on which a dividend was declared August 30, 1901, which amounted to $4,757.37. W. C. Atwater was not a stockholder at the time of the declaration of the dividend, and had not been since 1893.

Courtney, a citizen of Kentucky, brought suit in the circuit court of Powell county, Kentucky, against Pradt, executor, and William C. Atwater, and procured a general order of attachment, under which the sheriff summoned the company to answer as garnishee by delivery of a copy of the attachment to the person designated by the company as its agent upon whom process could be executed, as required by the statutes of Kentucky in that behalf. There was no personal service on Pradt, executor, or on William C. Atwater, but a warning order was entered pursuant to statute.

Pradt, as executor, and William C. Atwater, filed their petition and bond in the state court for the removal of the cause to the circuit court of the United States for the eastern district of Kentucky on the ground of diversity of citizenship, and it was removed accordingly. Pradt, executor, and William C. Atwater, entering their appearance in the circuit court for that purpose only, moved the court to dismiss the case 'for want of jurisdiction to try same.' On the same day, Pradt, executor, filed a special demurrer, assigning as causes, inter alia, that the court had no jurisdiction of the person or of the subject-matter. And on that day plaintiff moved to remand, no reasons being given. The circuit court overruled the motion to remand, sustained the motion to dismiss and the demurrer, and entered judgment dismissing the suit for want of jurisdiction. Two opinions were delivered, because further argument was permitted, and both are in the record. No certificate of the question of jurisdiction was applied for or granted; but an appeal was allowed to this court, which was argued in due course, together with a motion to dismiss.

Breckinridge & Shelby for appellant.

Messrs.Neal Brown, Louis A. Pradt,R. D. Hill, and Edwin C. Brandenburg for appellees.

Mr. Chief Justice Fuller delivered the opinion of the court:

It appears from the opinions of the circuit court, to which we properly may refer (Loeb v. Columbia Twp. 179 U. S. 472, 45 L. ed. 280, 21 Sup. Ct. Rep. 174), that the court held that the state court had no jurisdiction so far as William C. Atwater was concerned unless it had jurisdiction as against the foreign executor of his deceased partner; that the suit must be treated as if against the foreign executor alone; and that it could not be maintained against the foreign executor in the state court, nor in the Federal court. And further, that the court was not bound to remand the case that the state court might determine that question.

The appeal was taken directly to this court, and cannot be maintained unless the case comes within the first of the classes named in § 5 of the judiciary act of March 3, 1891, which gives an appeal or writ of error direct 'in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme court from the court below for decision.' [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549].

It is settled that the question of jurisdiction thus to be certified is the jurisdiction of the circuit court as a court of the United States, and not in respect of its general authority as a judicial tribunal. Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 Sup. Ct. Rep. 497; Mexican C. R. Co. v. Eckman, 187 U. S. 429, 47 L. ed. 245, 23 Sup. Ct. Rep. 211; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; Bache v. Hunt, 193 U. S. 523, 48 L. ed. 774, 24 Sup. Ct. Rep. 547.

And the general rule is that the certificate is an absolute prerequisite to the exercise of jurisdiction here. Maynard v. Hecht, 151 U. S. 324, 38 L. ed. 179, 14 Sup. Ct. Rep. 353. Althoug...