Walker v. Collins, 48.

• Decision Date: 23 May 1892
• Docket Number: 48.
• Citation: 50 F. 737
• Parties: WALKER et al. v. COLLINS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

50 F. 737

WALKER et al. v. COLLINS et al.

No. 48.

United States Court of Appeals, Eighth Circuit.

May 23, 1892

W. E Brown and Willard Kline, for plaintiffs in error.

C. S Bowman and C. Bucher, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRAS District Judge.

From the record in this cause it appears that in the spring of 1890, and previous thereto, one Henry Cannon was engaged in the mercantile business at Newton, Kan. Becoming insolvent he sold his entire stock of goods to the firm of Collins &amp Bretch, they agreeing to pay therefor 50 cents on the dollar of the cost marking. The goods invoiced about $12,000 at the cost price, for which the purchasing firm gave their check in the sum of $6,000. E. H. Van Ingen & Co., creditors of said Cannon, brought an action, aided by attachment, in the circuit court of the United States for the district of Kansas, for the purpose of recovering the debt due them from Cannon, and caused the writ of attachment to be levied upon part of the stock transferred to Collins & Bretch, who thereupon sued the marshal and his deputies for the damages caused them by such taking of the goods. The case was tried in the circuit court for the district of Kansas, and a verdict and judgment were rendered in favor of the plaintiffs, to reverse which the present writ of error was sued out from this court.

The principal question discussed by counsel in support of the errors alleged arises upon the rulings of the trial court in overruling a challenge made for cause by plaintiffs in error to a juror called as a talesman, the ground of challenge being that the person so called had, during the same term of said court, served as a talesman on the trial of another cause, and was therefore subject to challenge under the provision of section 270 of the Kansas Code of Civil Procedure, which enacts that service as a talesman on the trial of any cause in the same court and term is ground for challenge. The question for decision is whether this section of the Kansas statute is applicable to cases pending in a federal court to that state. The argument is that the act of congress of 1872 makes the state practice the rule for the guidance of the federal courts. If there was no legislation by congress upon the subject-matter, the argument might be conclusive; but it is well settled that the practice act of 1872 does not put in force the state statutes in regard to matters touching which congress has legislated. In that event, courts of the United States are bound to look to the act of congress as their guide, and the provisions of the state law are deemed inapplicable. Thus in Ex parte, Fisk, 113 U.S. 713, 5 S.Ct. 724, it is said:

'But the act of 1789, which made the laws of the states rules of decision, made an exception when it was 'otherwise provided by the constitution, treaties, or statutes of the United States.' The act of 1872 evidently contemplates the same exception by requiring the courts to conform to state practice as near as may be. No doubt it would be implied, as to any act of congress adopting state practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject. There are numerous acts of congress prescribing modes of procedure in the circuit and district courts of the United States at variance with the laws of the states in which the courts are held. Among these are the modes of impaneling jurors, their qualifications, the number of challenges allowed to each party. * * * We think it may be further added, in the same direction, that if congress had legislated on this subject, and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of any legislation of the states in the same matter.'

Section 812 of the Revised Statutes of the United States declares that--

'No person shall be summoned as a juror in any circuit or district court more than once in two years, and it shall be sufficient cause of challenge to any juror, called to be sworn in any cause, that he has been summoned and attended said court as a juror at any term of said court held within two years prior to the time of such challenge.'

By the provisions of section 2 of the act of June 30, 1879, it is enacted that no person shall serve as a petit juror more than one term in any one year, thus shortening the time named in section 812. Section 812 declares that 'it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned,' etc.; thus including all persons called to be sworn, whether they are members of the regular panel or are called as talesmen. Thus we find that congress has by legislation determined when a person called to serve upon a jury may be challenged upon the ground of previous service in that capacity, and the rule prescribed by the state statute cannot, therefore, be made applicable in the federal court. As it is not claimed that the juror who was challenged had been summoned and attended at any term prior to that at which he was called as a talesman, no ground for challenge existed under the provisions of the statutes of the United States, and the trial court did not err in overruling the challenge in question.

Several assignments of error are based upon the fact that Collins and Bretch, the plaintiffs in the action, were permitted to testify to the value of the goods taken by the marshal; the ground of objection being that it did not appear that they were qualified by previous experience to testify on the question of value. Both witnesses stated that they knew the character of the goods taken, and had been selling from the stock for a few days before the seizure by the marshal, and thought they knew the fair value thereof. From the evidence it appeared that these parties had aided in taking the invoice of the goods at the time of the purchase. They had been in possession, selling the goods, for three days before the levy by the marshal, and they had sold out the balance not taken under the writ of attachment, and hence it appeared that they had some means of knowing the value of the goods. Their testimony was therefore competent, the jury being the judges of the weight thereof, and the trial court did not err in admitting the same.

It was shown by the evidence that, after the levy of the attachment by the marshal, certain other creditors of Cannon had sued on a writ of attachment in the state court, and levied the same upon the remainder of the stock not seized by the marshal; that Collins & Bretch had replevied these goods in the state court, stating in an affidavit filed in such case that the goods so replevied were worth $6,000; that in the trial court judgment in the replevin suit was rendered in favor of Collins & Bretch.

In the case at bar the...