state of Mississippi. It is set out that, at the time of the alleged assignment to appellee, E. H. Lombard was of unsound mind, memory, and understanding, and incapable of executing the assignment; that the same was obtained by the appellee by undue influence exercised upon appellant's father, and that it was without consideration. The assignment is alleged to constitute a cloud upon appellant's title to the notes in controversy. The notes are secured by deeds of trust upon real estate conveyed in Mississippi, which are duly recorded in the record of mortgages and trust deeds in that state.

The appellee could not be served with process in the southern district of New York, and an order was made [71] under § 57 of the Judicial Code for service. Service was made upon the appellee at Clarksdale, Mississippi. She thereupon made special appearance for the purpose of a motion to quash the service, upon the ground that she is a resident, citizen, and inhabitant of the state of Mississippi, and had not been within the New York district; and she moved for a dismissal of the bill. Upon hearing, the district court sustained the motion, set aside the service, and dismissed the bill.

trix under her mother's will that she
took the notes to New York.

After the death of her father, which
occurred in New York, after the death
of the mother, appellant filed a petition
in the chancery court of Mississippi,
and a decree was entered upon her pe-
tition, establishing the last will and
testament of her father. In that decree
there are [72] findings like those estab-
lishing the will of her mother; namely,
that her father was, at the time of his
death, a resident of Coahoma county,
Mississippi; that the personal property
bequeathed and devised by the will is
located in the second district of Coa-
homa county, Mississippi, the place of
residence of decedent at the time of his
death. The decree established the last
will and testament of E. H. Lombard,
admitted the same to probate, and ap-
pointed the appellant executrix.

It further appears that neither of the estates had been settled in the chancery court of Mississippi, the court of probate, and, as to both, administration was pending when this suit was brought. From these recitals it appears that, by the decrees of probate, invoked and obtained by the appellant, it was found that the decedents had been and were residents of Coahoma county, Mississippi, and that the personal property bequeathed under each will was located in the second district of that county, and hence subject to the jurisdiction of the court of probate.

The question here only concerns the jurisdiction. of the district court. There is much controversy in the record, embodied in affidavits, as to the manner in which possession of the notes was obtained by the appellant. By a law of Mississippi, set forth in and the assignment made to the appel- the record of (§ 2102, Code of Mississiplee. So far as we deem them necessary pi), it is provided: that an executor or to be considered, the facts are: The administrator shall not remove any of the notes are secured by deeds of trust on property of the estate out of the state; lands in Mississippi. It appears with- and the court is authorized, when it out contradiction that Eva W. Lom- appears that the property is about to bard, the mother, died May 25, 1919. be removed, to issue a precept to the Upon petition of appellant the will was sheriff, commanding him to seize the admitted to probate, and she was ap- same and hold it until legally disposed pointed and qualified as executrix in of, and the letters of such executor or the chancery court of Mississippi. The administrator may be revoked, on due decree in the chancery court finds that the last will and testament was fully and legally established as the last will of Eva W. Lombard, who, at the time of her death, was a resident of Coahoma county, Mississippi; that the lands devised by the will are situated in Bronxville, New York, and that the personal property bequeathed by the will is all located in the second district of Coahoma county, Mississippi, the place of residence of the deceased at the time of her death. It was before the qualification of appellant as execu

notice, and administration de bonis
non granted to some other person, and
suit may be instituted by creditors or
distributees of the estate on the bond,
and judgment rendered accordingly.

With these facts beyond dispute, did
service in Mississippi to call upon the
§ 57 of the Judicial Code authorize
respondent to answer in the district
court in New York, where the notes
were physically held, and there litigate
the controversy which had arisen con-
cerning them?

[73] Section 57 provides:
"When in any suit commenced in any

district court of the United States to, Used in this connection, personal propenforce any legal or equitable lien upon erty undoubtedly refers to such as is or claim to, or to remove any encum- lawfully localized within the district, brance or lien or cloud upon the title and there held and enjoyed, and thus to real or personal property within the made subject to the court's jurisdiction district where such suit is brought, one to clear its title from clouds and liens, or more of the defendants therein shall notwithstanding personal service withnot be an inhabitant of or found, with-in the district cannot be obtained upon in the said district, or shall not volun- those setting up adverse interests. It tarily appear thereto, it shall be lawful is the presence of property, real or perfor the court to make an order direct-sonal, within the district, which confers ing such absent defendant or defend- the limited jurisdiction conferred in § ants to appear, plead, answer, or demur 57 upon the district court. Chase v. by a day certain to be designated, Wetzlar, 225 U. S. 79, 56 L. ed. 990, 32 which order shall be served on such ab- Sup. Ct. Rep. 659. sent defendant or defendants, if prac- This court had occasion to consider ticable, wherever found, and also upon the statute in Jellenik v. Huron Copper the person or persons in possession or Min. Co. 177 U. S. 1, 44 L. ed. 647, 20 charge of said property, if any there Sup. Ct. Rep. 559, where it was held in be; or where such personal service upon a suit involving title to shares of stock, such absent defendant or defendants is that foreign service might be obtained not practicable, such order shall be pub- in the circuit court of the United States lished in such manner as the court may for the district of Michigan on adverse direct, not less than once a week for six claimants, to bring in certain alleged consecutive weeks. In case such absent owners of shares of stock held by Masdefendant shall not appear, plead, an-sachusetts defendants. This was held swer, or demur within the time so lim- to be so because the company was orited, or within some further time, to be ganized under the laws of Michigan, allowed by the court, in its discretion. whose statutes declared that the stock and upon proof of the service or publi- of the company was to be deemed to be cation of said order and of the per-personal property. For the purpose of formance of the directions contained in the suit it was decided that the prop the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proeeedings shall be taken shall be within another district, but within the same state, such suit may be brought in either district in said state

erty was within the state of Michigan, as the habitation or domicil of the company was within that state, which created the corporation, and made the property subject to its laws.

The appellant insists that the principles declared in that case control here, and cites statutes of New York and Mississippi defining personal property in terms broad enough to include written instruments creating pecuniary [75] obligations. The appellant also relies upon cases decided in this court, such as Wheeler v. Sohmer, 233 U. S. 434, 58 L. ed. 1030, 34 Sup. Ct. Rep. 607, in which it was held that the New York inheritance tax imposed upon the transfer of property within the state, belonging to a nonresident thereof, was not void under the due process clause of the Federal Constitution, as applied [74] The purpose of this section is to to promissory notes held in a nonresiauthorize service of process in suits to dent's safety deposit box in New York. remove clouds upon title, liens and en- In discussing the character of such cumbrances upon property within the property we held that the state might district, by bringing in adverse claim-tax such notes as property having a loants who cannot be reached by the ordi-cal situs within its borders. In De nary methods of personal service. The Ganay v. Lederer, 250 U. S. 376, 63 language used is primarily applicable to L. ed. 1042, 39 Sup. Ct. Rep. 524, this titles to realty. It is true that the stat-court sustained a Federal tax upon the ute also embraces personal property. income from stock, bonds, and mort

[36 Stat. at L. 1102, chap. 231, Comp. Stat. § 1039, 5 Fed. Stat. Anno. 2d ed. p. 525.]

471

gages owned by alien nonresidents, but | C. E. SCHAFF, as Receiver of the Mis

in the hands of an agent in this country, with full authority over them. In that case, as in the Wheeler Case, the previous decisions in this court were cited, which have held that notes, bonds, and mortgages may acquire a situs at a place other than the domicil of the owner, and be reached and taxed as localized property by the taxing authority.

souri, Kansas, & Texas Railway Company, Plff. in Err.,

1. The validity of an authority exercised under the United States is drawn in

We have no disposition to depart question so as to support a writ of error from the principle of those cases, but from the Federal Supreme Court to a state are of opinion that they do not control amended by the Act of September 16, 1916, court, under the Judicial Code, § 237, as the present controversy. . In our view where the power to create the authority is 57 of the Judicial Code cannot, under fairly open to denial and is denied. the facts of this case, be made the basis [For other cases, see Appeal and Error, 1725of a departure from statutory enact1731, in Digest Sup. Ct. 1908.] Error to state court - Federal quesments which require personal service tion - validity of Federal authority. within the district in order to subject 2. A decision of a state court so intera person to the jurisdiction of a Fed-preting the Federal Interstate Commerce

Act and a rule of the Interstate Commerce

[For other cases, see Appeal and Error, 17251731, in Digest Sup. Ct. 1908.]

[No. 91.]

eral court. In this cause the appellant derives Commission respecting the filing and posther title, as she sets forth in her bill, ing of rates as to render essential the filing from the bequests made to her by her of tariffs at stations at the points of origin father and mother, which, subject to of shipments does not involve the validity the settlement of the estates, would States, so as to be reviewable in the Fedof an authority exercised under the United give her title to the notes in controver-eral Supreme Court on writ of error, where sy. Upon her petition she was appoint- the state court did not question the Feded executrix of the wills. Upon her eral power to enact the statute, nor the representation as to residence of dece- authority of the Interstate Commerce Comdents she obtained letters testamentary mission to make the rule. Certiorari is in each of the estates. The decree of the only mode of review. probate declared the personal property to be within the jurisdiction of the Mississippi court. A statute of the state forbade its removal beyond the [76] borders of the state. These estates, at the time the bill was filed, remained open and unsettled. Under such circumstanees it would be doing violence to the purpose and provisions of § 57 to hold that the mere physical presence of the notes in New York, complainant having seen fit to take them there, made them personal property of that localized character lawfully within the southern district of New York which would justify foreign service upon a nonresident, and bring him or her to the local jurisdiction to contest title to the notes.

While the District Court puts its decision upon different grounds, we are of opinion that it rightly held that a case for foreign service was not made out, and did not err in setting aside the service, and dismissing the bill.

Affirmed.

Mr. Justice Pitney concurs in the result.

Argued and submitted January 16, 1922.
Decided February 27, 1922.

IN

N ERROR to the Supreme Court of the State of Minnesota to review a

Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884; and Kipley v. Illinois, 42 L. ed. U. S. 998.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571.

judgment which affirmed a judgment of the Municipal Court of Minneapolis, in that state, in favor of a shipper in a suit by the carrier to recover back a refund. Dismissed for want of jurisdiction.

See same case below, 145 Minn. 108, 176 N. W. 197.

The facts are stated in the opinion.

Mr. Charles W. Bunn argued the cause and filed a brief for plaintiff in error: Where a case turns on the issue directly raised and necessarily involved, -whether a tariff is valid, there is drawn in question the validity of an authority exercised under the United States. The question in this case, decided by the state court, was not the interpretation of a tariff or the extent or nature merely of some right claimed under it, but whether the tariff had any validity,-whether a tariff filed with the Interstate Commerce Commission, and otherwise valid, was invalid because not filed. at stations on the line.

Northern P. R. Co. v. North Dakota, 250 U. S. 135, 63 L. ed. 897, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502, 18 N. C. C. A. 878; Buck v. Colbath, 3 Wall. 334, 18 L. ed. 257; New York C. & H. R. R. Co. v. York & W. Co. 256 U. S. 406, 65 L. ed. 1016, 41 Sup. Ct. Rep. 509; Northern P. R. Co. v. Solum, 247 U. S. 477, 481, 62 L. ed. 1221, 1225, 38 Sup. Ct. Rep. 550; Ireland v. Woods, 246 U. S. 323, 328, 62 L. ed. 745, 749, 38 Sup. Ct. Rep. 319; United States ex rel. Champion Lumber Co. v. Fisher, 227 U. S. 445, 450, 57 L. ed. 591, 593, 33 Sup. Ct. Rep. 329; United States v. Lynch, 137 U. S. 280, 285, 34 L. ed. 700, 702, 11 Sup. Ct. Rep. 114; Baltimore & P. R. Co. v. Hopkins, 130 U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503.

Mr. Charles Burke Elliott submitted the cause for defendant in error:

A tariff not filed at the station is not in effect at that station, because never established by proper publication, as required by the statute and the rule of the Interstate Commerce Commission. United States v. Miller, 223 U. S. 599. 56 L. ed. 568, 32 Sup. Ct. Rep. 323; Gulf C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; Hale-Halsell Grocery Co. v. Missouri, K. & T. R. Co. 45 Inters. Com. Rep. 523; Texas & P. R. Co. v. Cisco Oil Mill, 204 U. S. 449, 51 L. ed. 562, 27 Sup. Ct. Rep. 358; Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 594, 56 L. ed. 556, 32 Sup. Ct.

Rep. 316; Virginia-Carolina Peanut Co.
v. Atlantic Coast Line R. Co. 166 N. C.
63, 82 S. E. 1; Hunter v. St. Louis &
S. F. R. Co. 167 Mo. App. 624, 150
S. W. 733; Oregon R. & Nav. Co. v.
Thisler, 90 Kan. 5, 133 Pac. 539; Pecos
River R. Co. v. Reynolds Cattle Co.
Tex. Civ. App. —, 135 S. W. 162.

Mr. Justice Day delivered the opinion of the court:

Plaintiff in error, as receiver of the

Missouri, Kansas, & Texas Railway Company, brought suit against J. C. F'amechon Company in the municipal court of the city of Minneapolis, to recover for charges for rental of refrigerator [79] cars used in shipping potatoes in 1914 and 1915 from various points in Minnesota over connecting lines to points in Oklahoma and Texas. The initial car riers were the Northern Pacific and Great Northern Railways, and the terminal carrier the Missouri, Kansas, & Texas Railway Company, for which plaintiff in error was receiver. The ter minal carrier received the potatoes, delivered them at their destinations, and collected from the shipper in excess of the regular line haul rate the sum of $5 for the use of each refrigerator car in four shipments in 1915. Upon one refrigerator car, shipped in 1914, was not collected. chon Company made claim against the railway company for an overcharge of $5 on each of the four shipments so made in 1915. The railway company refunded $20 to Famechon Company, for the receiver brought suit, claiming the refund was made by mistake and through a misunderstanding of the tariff and schedules; he also brought suit to recover $5 rental for the refrigerator car shipped in 1914.

the excess

which sum

Fame

Famechon Company, in its answer, pu in issue the allegations of the complaint, and pleaded a counterclain for the rental paid on two cars shipped in 1916. In the municipal court of Minneapolis defendant in error had judgment for $10, with interest and costs, and the receiver for the railway company appealed to the supreme court of Minnesota, which affirmed the judgment. 145 Minn. 108, 176 N. W. 197. A writ of error was allowed, bringing the case to this court.

From the facts found by the supreme court of Minnesota, and shown by evidence and stipulation, it appears that the established freight rate on potatoes in carloads from points of origin to points of destination, named in the pleadings,