GUMBEL v. PITKIN, U. S. Marshal, et al.

The grounds on which the circuit court proceeded in denying the relief prayed for by the intervenor, and which have been reiterated in argument at the bar, are—First, that no levy of the writ of attachment was in fact made by the sheriff, because he did not, and could not, acquire actual possession of the property sought to be seized then in the possession of the marshal, it being essential, under the laws of Louisiana, to the validity of the levy of such a writ that the officer should thereby acquire actual and exclusive possession of the property to be attached; and, second, that no levy by the sheriff under his writ of attachment was effected by the notice served upon the marshal as garnishee, because the marshal, as an officer of the circuit court of the United States, was not amenable to, and could not be affected by, process from a state court.

It may be remarked in the outset that if the intervenor is entitled to any relief, the mode in which he has sought it is appropriate. On the motion to dismiss the writ of error (113 U. S. 545, 5 Sup. Ct. Rep. 616) it was decided that his right to intervene by petition in this action was justified by the laws of Louisiana, and by the decision of this court in Freeman v. Howe, 24 How. 450. In Krippendorf v. Hyde, 110 U. S. 276, 283, 4 Sup. Ct. Rep. 27, it was said: 'The grounds of this procedure are the duty of the court to prevent its process from being abused to the injury of third persons, and to protect its officers, and its own custody of property in their possession, so as to defend and preserve its jurisdiction, for no one is allowed to question or disturb that possession except by leave of the court. So the equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustice, are inherent and equally extensive and efficient, as is also their power to protect their own jurisdiction and officers in the possession of property that is in the custody of the law. Buck v. Colbath, 3 Wall. 334; Hagan v. Lucas, 10 Pet. 400. And when, in the exercise of that power, it becomes necessary to forbid to strangers to the action the resort to the ordinary remedies of the law for the restoration of property in that situation, as happens when otherwise conflicts of jurisdiction must arise between courts of the United States and of the several states, the very circumstance appears which gives the party a title to an equitable remedy, because he is deprived of a plain and adequate remedy at law; and the question of citizensh p, which might become material as an element of jurisdiction in a court of the United States, when the proceeding is pending in it, is obviated by treating the intervention of the stranger to the action in his own interest as what Mr. Justice STORY calls in Clarke v. Mathewson, 12 Pet. 164, 172, a 'dependent bill.' In that case, it was further stated, speaking of contests between execution or attachment creditors in the federal courts, on the one hand, and strangers to the actions claiming title to the property, on the other, that 'if the statutes of the state contain provisions regulating trials of the right of property in such cases, it might be most convenient to make them a part of the practice of the court as contemplated by sections 914, 915, 916 of the Revised Statutes.'

In the subsequent case of Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355, it was decided that the principle that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being, applies both to a taking by a writ of attachment under a mesne process and to a taking under a writ of execution. It was there, also, decided that 'property thus levied on by attachment or taken in execution is brought by the writ within the scope of the jurisdiction of the court whose process it is, and as long as it remains in the possession of the officer it is in the custoday of the law. It is the bare fact of that possession, under claim and color of that authority, without respect to the ultimate right to be asserted otherwise and elsewhere, as already sufficiently explained, that furnishes to the officer complete immunity from the process of every other jurisdiction that attempts to dispossess him.' So in Lammon v. Feusier, 111 U. S. 17, 19, 4 Sup. Ct. Rep. 286, it was asid: 'When a marshal upon a writ of attachment on mesne process takes property of a person not named in the writ, the property is in his official custody and under the control of the court whose officer he is and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way except in the court from which the writ issued.'

It thus appears that plaintiff in error came rightfully into the circuit court for whatever relief, either of a legal or equitable nature, that court was competent to give. It is equally true that he must depend exclusively on the circuit court for such relief as he can there obtain, for it is quite clear that the civil district court acquired no jurisdiction over the property under the writ of attachment held by the sheriff, nor any jurisdiction over the person of the marshal as garnishee, by virtue of the notice served upon him to answer interrogatories as such. The sheriff acquired no such possession of the property as to bring it within the custody of the state court, and the marshal was not amenable to the state court as its custodian for property which he claimed to hold officially under process from the circuit court. The circuit court alone had jurisdiction to inquire into and determine all questions relating to the property, and the rights growing out of its custody, held by its own officer under color of its authority, saving, of course, all rights of action against the marshal personally for his wrongful and illegal acts resulting in injury to third persons, except such as involved the legal right to take the property out of his possession. As we have already seen, and as has been many times declared by this court, the equitable powers of the courts of the United States, sitting as courts of law, over their own process, to prevent abuse, oppression, and injustice, are inherent, and as extensive and efficient as may be required by the necessity for their exercise, and may be invoked by strangers to the litigatio as incident to the jurisdiction already vested, without regard to the citizenship of the complaining and intervening party. This is the equity in voked by the plaintiff in error, which was denied to him by the circuit court.

It is certainly true, and must be conceded, as was adjudged in the court below, that Gumbel acquired, under his writ of attachment, no strict and techmcal legal standing as an attaching creditor with an actual levy on his debtor's property. There was no such actual seizure of the property by the sheriff as was necessary to constitute a levy at law. That seizure was prevented, and the attempted levy thus defeated, by the wrongful and illegal act of the marshal. That officer had taken possession of the goods on Sunday, under color of process issued the same day, illegal by the laws of the state, and as such discontinued and abandoned by the parties. The possession thus acquired was made use of for the benefit of the plaintiffs in attachment in the circuit court to defeat the exection of the process of the state court. It was illegal in the marshal to have taken possession of the goods under the writs in his hands issued on Sunday. It was his duty, when the sheriff appeared with a lawful writ from the state court, to surrender possession to him. His failure and refusal to do so was an actionable injury in which the present plaintiff in error, in a suitable action at law, would have been entitled to recover, both against him and against the attaching creditors for whom and at whose request he was acting, the whole amount of the loss, measured by what the plaintiff would have made if he had secured the benefit of the priority to which he would have been entitled by a first levy of his attachment upon the property. Instead of resorting to such an action, the plaintiff in error appealed to the circuit court for that equity which that court was entitled to administer by virtue of its duty to redress injuries occasioned by the abuse of its process on the part of its officers and suitors. Why should that equity not be administered in this proceeding? The court had before it all the parties, together with the property which was the subject of contention. The remedy was plain, simple, and effectual. It could award to the intervenor the position in respect to the property and fund in court which, but for the injustice done him by the conduct of its officer and suitors in the abuse of its process, he would have acquired by a legal levy under his attachment. Neither the marshal nor the creditors for whose benefit he acted ought to be allowed to say that the intervenor had been deprived of the substance of his rights, because by their illegal and oppressive conduct he had been prevented from clothing it with technical forms. It is a cardinal maxim that no one shall be allowed, in a court of justice, to take advantage of his own wrong. No more flagrant instance of a violation of that fundamental principle can be conceived than that which is furnished by the circumstances of the present case. The very ground, and the sole ground, on which relief is denied to the plaintiff in error, is that he has been prevented from asserting it legally by the violence and wrong of those who now deny it.

This principle has especial application in cases of proceedings by attachment. 'The existence of the proceeding by attachment [it is said in Drake on Attachments, § 272] could hardly fail to give rise to fraudulent attempts to obtain preference where the property of a debtor is insufficient to satisfy all the attachments issued against him. When it transpires that there are circumstances justifying resort to this remedy, the creditors of an individual usually press forward eagerly in the race for precedence, sometimes to the neglect of important forms in their proceedings, and sometimes without due regard to the rights of others. On such occasions, too, notwithstanding the safeguards generally thrown around the use of this process, and in violation of the sanctity of the preliminar oath, it has been found that men in collusion with the debtor, or counting on his absence for impunity, have attempted wrongfully to defeat the claims of honest creditors by obtaining priority of attachment on false demands. There is, therefore, a necessity—apparent to the most superficial observation—for some means by which all such attempts to overreach and defraud, through the instrumentality of legal process, may be summarily met and defeated. Hence provision has been made in the statutes of some states for this exigency; but where such is not the case, the courts have broken the fetters of artificial forms and rules, and attacked the evil with commendable spirit and effect.' Accordingly, it has been held in New Hampshire, in the absence of a statute authorizing an attaching creditor to impeach the good faith of previous attachments, that on a suggestion that a prior attachment was prosecuted collusively between the plaintiff and defendant, for the purpose of defrauding creditors, the court would permit a defense to be made by the creditors in the name of the defendant, (Buckman v. Buckman, 4 N. H. 319;) and that a subsequent attaching creditor might move to dismiss a prior attachment on the ground that there was no such person as the plaintiff therein, (Kimball v. Wellington, 20 N. H. 439.)

In Virginia, it has been held that a junior attaching creditor may come in and defend against a senior attachment by showing that the debt for which it issued had been paid. McCluny v. Jackson, 6 Grat. 96. In Smith v. Gettinger, 3 Ga. 140, it was decided upon general principles, and without any aid from statutory provisions, that a judgment in an attachment suit may be set aside in a court of law, upon an issue suggesting fraud and want of consideration in it, tendered by a junior attaching creditor of the common defendant. In Massachusetts provision is made for appropriate relief in such cases by statute. Lodge v. Lodge, 5 Mason, 407; Carter v. Gregory, 8 Pick. 165; Baird v. Williams, 19 Pick. 381; Swift v. Crocker, 21 Pick. 241. The case of Paradise v. Bank, 5 La. Ann. 710, is an important adjudication, having a direct bearing upon the point now under consideration. A suit in chancery was instituted in Memphis, Tennessee, by stockholders of a bank there against the bank, and its president and directors, in which a receiver was appointed, an injunction obtained, and an order for the delivery of the assets of the bank to the receiver served on the president, who, during an unsuccessful attempt to enforce the process of the court, obtained possession of the assets and ran off with them to New Orleans, where they were attached in his hands by a creditor of the bank, and were claimed in the attachment suit by the receiver appointed by the court in Tennessee. The courts of Louisiana ordered the attached property to be released from the process and delivered to the receiver. The supreme court of the state, in its opinion, said: 'The property which thus stands before us for adjudication thus appears to have been brought within the jurisdiction of this court in disobedience and in violation of the process of a court of a sister state, and in fraudulent violation of the rights of property of its real owners. It is proved that the process of the court of chancery and a writ of injunction and an order directing the delivery of the assets of the bank forthwith to the receiver were duly served on Fowlkes, (the president,) as well as the directors of the bank. The grounds on which it is contended the judgment of the district court (ordering the property to be delivered to the receiver) is to be reversed are, (1) that a receiver in chancery cannot maintain a suit without special authority from the court which appoints him; (2) that the possession of the property attached not having been in the receiver, it is liable to the process of attachment at the instance of a bona fide creditor. We will not inquire into the technical question whether the authority of the chancellor is necessary to institute a suit at law; it is sufficient for us that property, in relation to which an order of a court of a sister state of competent jurisdiction has been issued, has been fraudulently or forcibly withdrawn from its jurisdiction by a party to the suit, and that the injunction issued in this case by the chancellor is still in force and binding upon the offending party. The order of the court of chancery is a sufficient authority for the intervenor (the receiver) to receive the assets of the bank; and the delivery to him will be a good delivery binding upon the bank, as well as in furtherance of justice. We have uniformly discountenanced all attempts, in whatever form they may be made, of making our courts instruments for defeating the action of courts of other states on property within their jurisdiction by means of clandestine or forcible removal to this state. The only decree which we render in such cases is that of immediate and prompt restitution, or one preventing any rights to be acquired by these attempts to defeat the ends of justice. This is an answer to the question raised concerning the peculiar right of the creditor. The only right which he, in any event, could reach, would be subordinate to the injunction from the operation of which this property has been attempted to be removed. Not only on general principles, but on the cases cited by the learned judge who decided this case, the claim of the plaintiff to subject this property to attachment is without the shadow of right.'

The case just cited was not so flagrant as the present. The attaching creditor in that case was innocent of any participation in the wrong involved in the removal of the property from the jurisdiction of the Tennessee court. Here, the attaching creditors are the very parties at whose instance, and for whose benefit, the wrong upon the intervenor has been perpetrated. Upon general principles, therefore, and in the excercise of its equitable power as a court of law to prevent and redress injustice committed upon a stranger by the abuse of its process on the part of its officers and suitors, the circuit court ought to have granted the relief to the intervenor which by its judgment is denied. There is, however, another ground on which the same conclusion may safely rest. By section 915, Rev. St., the circuit court is authorized, in favor of suitors in that court, to administer the attachment laws of the state in which the court is held, and the exercise of this jurisdiction necessarily draws to itself everything properly incidental, even though it may bring into the court for the adjudication of their rights parties not otherwise subject to its jurisdiction. So that in Krippendorf v. Hyde, 110 U. S. 276, 284, 4 Sup. Ct. Rep. 27, where the statute of Indiana regulating the process of attachment provided that, after the institution of the suit, and before final judgment, any creditor of the defendant might file and prove his claim with the right to participate in the distribution of the proceeds of the attached property, it was said that in an action rightly instituted in the circuit court, in which the property of the common debtor was attached, all other creditors might appear in pursuance of the state law, and share in the distribution, although citizens of the same state with the defendant, and although the amounts due them were less than the jurisdictional sum of $500.

In the case of Bates v. Days, 17 Fed. Rep. 167, decided by the circuit court of the United States for the Western district of Missouri, it was held, first by Judge KREKEL, and affirmed by the circuit judge, MCCRARY, on a motion for a rehearing, that questions of priority between attaching creditors, some of whom were plaintiffs in that court and some in the state court, might be determined on proceedings for distribution of the proceeds of sale of the attached property made by the marshal, wh had the actual custody by virtue of the first seizure, upon the ground that section 915, Rev. St., incorporated, as a part of the practice of the courts of the United States for that district, section 447 of the Revised Statutes of Missouri, which provided that: 'Where the same property is attached in several actions, by different plaintiffs against the same defendant, the court may settle and determine all controversies which may arise between any of the plaintiffs in relation to the property, and priority, validity, good faith, and effect of the different attachments, and may dissolve any attachment, partially or wholly, or postpone it to another, or make such order in the premises as right and justice may require;' it being held in that state that if the writs issue from different courts of co-ordinate jurisdiction, such controversies shall be determined by that court in which the first writ of attachment was issued and levied. In the case referred to, the first attachment was issued out of the circuit court of the United States, the marshal having possession of the property by virtue of a seizure under that writ. The writ of attachment issued out of the state court was returned by the sheriff, stating that he had levied the same on the stock of goods of the defendant, subject to the attachment of the plaintiff, in the United States court, and that he notified the marshal of the attachment and levy, and summoned him as garnishee. In deciding the case, it was said by the district judge that 'the executive officers of courts should understand that when writs issue from state and federal courts against the same property, the officer first obtaining possession, on being notified that a state court officer, as in this case, has a writ against the same property, all reasonable facilities should be offered such officer to make a full return, and the officer holding the property should show in his return whatever was done by such state court officer. Federal and state courts are not foreign courts, or in hostility to each other, in administering justice between litigants. The citizen of the state in the federal court is as much in his own court as in the courts of the state. The rights he has he cannot be deprived of in a federal court. The citizen of another state has the same claim to a debtor's property in the state of Missouri as a resident, but no more.'

The same principle is asserted by the supreme court of the state of Missouri in the case of Patterson v. Stephenson, 77 Mo. 331, as between co-ordinate state courts. It was there said: 'On principle and reason, the validity of successive levies by the same officers on the same property is a recognition of the practical fact that there may be, after a taking into custody of the law the property of the debtor, an effectual imposition of another writ without an actual caption, or a taking away of the property, or an appropriation of it for the time being, to the attaching creditor's claim. It is held in such case that the second writ in the hands of the same officer is executed by him sub modo, so 'it will be available to hold the surplus after satisfying the previous attachment, or the whole, if that (the first) attachment should be dissolved. In such case no overt act on the part of the officer is necessary to effect the second levy, but a return of it on the writ will be sufficient. So, where the property is in the hands of the bailee, the officer who placed it there may make another attachment, without the necessity of an actual seizure, by making return thereof, and giving notice to the bailee.' Drake, Attachm. § 269. In Tomlinson v. Collins, 20 Conn. 364, it is held in such case that the second attachment is valid even without any notice to the bailee. Evidently the making of a second levy by the same officer is recognized because it does not disturb his custody of the property. If the rule which prevents one officer from levying on goods seized by another officer rests mainl on the prevention of conflict of jurisdiction and the interference of one officer with the prior custodianship of another, then, on the maxim, cessante ratione legis, cessat ipsa lex, I can see no reason for the operation or recognition of the rule, where the second levy does not produce such conflict or interference. For it must be borne in mind that the other requirement of the law, that the levying of an attachment is an actual seizure of the property, is satisfied in the case of successive levies by the same officer, by a constructive application of the succeeding writ 'to the surplus after satisfying the previous attachment.' Why, then, was not the act of the sheriff in the case now under consideration, in taking the invoice of the goods in connection with the constable, 'available to hold the surplus after satisfying the previous attachment,' made by the constable? The constable had the requisite notice. It in nowise interfered with the prior custody. It produced no conflict, and would lead to no confusion.' Upon this reasoning, it is contended, on behalf of the plaintiff in error, that he was entitled to the benefit of section 1942, Rev. St. La. 1870, which provides that 'whenever a conflict of privileges arises between creditors, all the suits and claims shall be transferred to the court by whose mandate the property was first seized, either on mesne process or on execution, and the said court shall proceed to class the privileges and mortgages according to their rank and privilege, in a summary manner, after notifying the parties interested.'

There are difficulties in the literal application of such a statutory provision, intended, of course, to regulate the practice between themselves of co-ordinate state courts, to cases of conflicting rights arising between suitors in the federal and state courts, where the systems are independent. It is impossible to transfer suits pending in the state courts into the circuit courts of the United States, except as provided by act of congress for the removal of such causes. Nevertheless, the substance of the provision may be applied to the practice of the courts in attachment proceedings in such a way as to promote and secure that comity which ought to prevail between federal and state tribunals exercising concurrent jurisdiction, and to administer justice in a conflict of rights growing out of their independent action. Where, under a writ of attachment, the marshal of the United States has first seized property and taken it into custody, the exclusive jurisdiction of the circuit court is established over it, and over all questions concerning it; but it ought not to follow that the property is thereby withdrawn from the assertion and enforcement of claims against it by those who must necessarily pursue their remedy in the first instance in a state court. A creditor residing in the same state with the defendant, and therefore required to institute proceedings in the state tribunal, ought to be enabled, by his writ of attachment, to subject the property of the debtor in due course, and according to the drder of priority, even though, when the sheriff proceeds to execute the writ, he finds that property in the possession of the marshal of the United States, and therefore subject to the jurisdiction of the federal court. In that case no rule of law or of convenience is violated if he is permitted, by service of notice upon the marshal, to make a constructive levy upon the property, subject to all prior liens, and without disturbing the marshal's possession. This, of course, would not have the effect of subjecting the marshal personally or officially to answer as garnishee to the state court as custodian of the property for the purposes of its jurisdiction, but would entitle the attaching creditor in the state court to acquire a right in the property and to appear in the proceeding in the circuit court to enforce it on a motion to distribute the proceeds of the sale of the attached property in its custody. This is the recogniz d practice in those states where successive attachments are authorized to be served by the same officer, acting as the executive of different courts, or by different officers each acting independently of the other. There seems to be no reason why a similar practice should not be adopted as between federal and state tribunals acting concurrently in the administration of the same laws. Indeed, every consideration of justice and convenience might be adduced to support it. And such a practice in the courts of the United States, when authorized by law in the administration of attachment proceedings as between state courts, seems to us to be justified as a reasonable implication from section 915, Rev. St. That section expressly secures to plaintiffs in common-law causes in circuit and district courts of the United States similar remedies by attachment against the property of the defendant to those provided by laws of the state in which such court is held for the courts thereof, and authorizes the courts of the United States, by general rules, to adopt from time to time such state laws as may be in force in the states where they are held in relation to the same subject. The remedies here spoken of, of course, are to be understood as they are defined in the state laws, and subject to the same conditions and limitations. The authority thus conferred is ample to authorize and sanction the practice of permitting the constructive levy by attaching creditors under state process upon the property in possession of the marshal and their intervention in proceedings in the circuit court of the United States for the same district, where, as between state courts of concurrent jurisdiction, a similar method of acquiring and adjusting conflicting rights is prescribed.

Under such a practice, if in the present case the marshal had acquired and held possession of the attached goods, by virtue of a valid writ first levied, the plaintiff in error, by making his constructive levy, subject to the prior right and possession of the marshal, by giving him the appropriate notice of his claim to hold him as a garnishee in possession of the property for his benefit as to any surplus that might remain after payment of prior claims, would have thereby acquired the right, after establishing his claim by judgment in the state court and presenting proper proof thereof, the appear in the circuit court as an intervenor and secure his right to share in the proceeds of the sale of the attached property in his proper order. But the case as actually presented upon the circumstances disclosed in this record, is much stronger for such an intervention. When the sheriff of the civil district court undertook to levy upon the goods in question, and served the marshal with notice as garnishee holding actual possession of the property, the latter was in fact, as we have already seen, in possession illegally under a writ, which protected his official possession only so far as to prevent the property from being forcibly withdrawn from the jurisdiction of the circuit court by judicial process, that court having acquired jurisdiction, by virtue of the seizure under color of its authority, to decide all questions concerning it. That writ, though illegally issued and levied, was not void on its face. In a certain sense, therefore, the property was in custodia legis, and not subject to a levy under process which would have the effect of taking it out of his possession and control. But when, in the exercise of jurisdiction by the circuit court in the determination of the question raised by the petition of intervention, the nature of the marshal's title and possession came to be inquired into, it was made apparent that he held the property illegally as a trespasser, and in that forum could be treated as holding it in a private and not an official capacity. It was subject, therefore, in the view of that court, to the consequences of the notice served upon the marshal as garnishee. It was held by the marshal § if it had been a surplus arising from the sale of the property of a defendant on execution, which, as is well established, may be attached in his hands. Drake, Attachm. § 251.

The case, therefore, stands thus: For the reasons growing out of the peculiar relation between federal and state courts, exercising co-ordinate jurisdiction over the same territory, the circuit court acquired the exclusive jurisdiction to dispose of the property brought into its custody under color of its authority, although by illegal means, and to decide all questions of conflicting right thereto; the plaintiff in error, having pursued his remedy by action against his debtor in the state court, to which alone, by reason of citizenship, he could resort, attempted the levy of his writ of attachment upon the goods in the possession of the marshal; not being allowed to withdraw from the marshal the actual possession of the property sought to be attached, he served upon the marshal notice of his writ as garnishee; not being able by this process to subject the marshal to answer personally to the state court, he made himself a party to the proceedings in the circuit court by its leave, and proceeded in that tribunal against its officer and the creditors for whom he had acted; on a regular trial it appeared as a fact that at the time of the notice the marshal was in possession of the property wrongfully as an officer, and therefore chargeable as an individual. It was competent for the circuit court, and, having the power, it was its duty, to hold the marshal liable as garnishee; and having in its custody the fund arising from the sale of the property, and all the parties interested in it before it, that court was bound to do complete justice between all the parties on the footing of these rights, and give to the plaintiff in error the priority over all other creditors, to which by virtue of his proceedings, and as prayed for in his petition of intervention, he was entitled.

On these grounds, the judgment of the circuit court is reversed, and the cause remanded, with directions, upon the facts found in the circuit court, to award judgment in favor of the intervenor, Gumbel, in conformity with this opinion; and it is so ordered.