Caldwell, 124 Mo. 513, 28 S. W. 4), as this bail bond was taken by a commissioner in the Southern District of New York pursuant to law and was approved there, it was in effect taken by the court of that district, and that court has jurisdiction of the scire facias proceeding to enforce the same. It was not taken in the District Court of the Eastern Division of the Southern District of Georgia. That court had no jurisdiction to take this particular recognizance, but the court in New York did have by virtue of a special statute.

In United States v. Insley, 54 Fed. 223, 4 C. C. A. 296, it was held that a forfeited recognizance such as this may be enforced by scire facias proceedings, but it is expressly stated that the writ or process must be "duly served."

By section 716, Rev. St. [U. S. Comp. St. 1901, p. 580], it is expressly provided that the Supreme, Circuit, and District Courts of the United States may issue writs of scire facias, but there is no provision that when issued in one district they may be served in another.

The case of People v. Quigg, 59 N. Y. 83, has no application here. That case arose under a statute of the state of New York providing for a summary final judgment upon a forfeited recognizance, and, the statute having been strictly followed and judgment entered, the court held that such provision entered into and formed a part of the undertaking of the surety, and that by executing the recognizance he consented, in case of default, that judgment might be entered and perfected in the manner prescribed by that statute, and that he waived any other process of law. But here we have no statute of the United States providing for a final judgment upon a forfeited recognizance in any other manner than that following a suit or a scire facias proceeding, in both of which cases the process by which the suit or proceeding is instituted must be "duly served." And due service means personal service within the district in which the process legally issues. Undoubtedly it would be competent for Congress to provide for summary final judgments without notice upon forfeited recognizances in criminal cases, irrespective of the residence of the surety in the recognizance, either at the time it was executed, or at the time of its forfeiture, or at the time of the institution of proceedings to enforce the liability, and .for execution without notice, and in such case the surety would assent to that mode of enforcing his liability, but no such statute has been enacted, nor is that the common law.

Elasser v. Haines, 52 N. J. Law, 10, 18 Atl. 1095, does not substantially aid the defendants in this case. There the question was whether the New Jersey court would recognize and enforce against the defendant Haines a judgment obtained against him in the state of Pennsylvania, and which he had not moved to vacate, and from which he had not appealed. The judgment in question was obtained in the district court of the city and county of Philadelphia, in the state of Pennsylvania, on a forfeited recognizance in a civil action in the following manner: October 20, 1868, the defendant personally appeared in the said district court, and entered into the recognizance in question as surety for one Owens, and the condition having been

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broken, the recognizance was duly forfeited. Thereupon a writ of scire facias was issued, and, defendant not being found, a return nihil habet was duly made, and thereafter an alias writ of scire facias was issued in said matter, and this also was returned nihil habet. Thereupon judgment was entered against the defendant according to the laws and the practice of the courts of the state of Pennsylvania. In the action in New Jersey the defendant pleaded that he was not a resident of the district in which said judgment was rendered when such writs issued and such judgment was entered, nor did he appear. He did not deny that he was a resident of the said district when he executed the recognizance or of the state of Pennsylvania at the times mentioned, nor that he went into open court in the district and entered into the recognizance. Two nihils being equivalent to service. on all residents of the state of Pennsylvania, and that being the recognized law of the state, and defendant being a resident of the state, the service was good. Defendant consented to that mode of entering judgment when he entered into the recognizance. Says the court, page 18, 52 N. J. Law, and page 1098, 18 Ätl.:

"The answer is that by the form of the procedure, of which the writs of scire facias formed a part, the conusor voluntarily made himself a party to the proceeding. He went into court and confessed a debt, subject to a condition, with the knowledge that if he absented himself from the jurisdiction a judgment might be taken against him on the return of two unserved writs of scire facias. Such was the legal effect of the act done by him, and in intendment of law he was held to have assented to such effect. If, when he confessed the debt, he had expressly consented, in pursuance of a local statute, to the entry of a final judgment of this nature on the return of two unserved writs of scire facias, it is presumed it would not be contended that a judgment entered in accordance with such stipulation would not have been of unquestionable validity; and yet as he is chargeable with the knowledge, when he entered into this recognizance, that such result would obtain, according to the laws then in force, the tacit assent to such procedure wants but little of the force that would have resided in such supposed positive agreement."

There was a vigorous dissent in that case. But the holding in that case is contrary to the decisions in the state of New York. Robinson v. Executors of Ward, 8 Johns. 86, 5 Am. Dec. 327; Kilburn v. Woodworth, 5 Johns. 37, 4 Am. Dec. 321; Fenton v. Garlick, 8 Johns. 194. In the first case cited the action was on a judgment obtained in the state of Vermont, where service, not personal, was obtained according to the laws of that state, a mixture of substituted service and scire facias proceedings. Two "nihils" were returned to the scire facias, but defendant was not a resident of the state. The court said:

"At all events, there was no personal service or actual notice. And in the case of Kilburn v. Woodworth it is said that to bind a defendant by a judgment, when he was never personally summoned or had not notice of the proceedings, would be contrary to the first principles of justice. And whether the proceedings were valid, and according to the course of the court in the place where such judgment was obtained, or not, would make no difference, according to the case of Buchanan v. Rucker, 9 East, 192. The principle on which these decisions turn applies to the present case, notwithstanding Ward was sued as bail in Vermont. The proceedings against him there were in the nature of a new suit, and the bail might have had a good and substantial defense to make. There is, therefore, the same reason for his having notice

as in any other case. We are accordingly of opinion that the defendant is entitled to judgment."

The case of Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837, would seem to settle the proposition that, while two returns "nihil" on successive writs of scire facias are equivalent to service when the defendant in the scire facias resides or is found within the jurisdiction of the court where the writ issues (Brown v. Wygant & Leeds, 163 U. S. 618, 16 Sup. Ct. 1159, 41 L. Ed. 284), and the proceeding is to revive a judgment, two successive returns "nihil" on two writs of scire facias are not equivalent to service where the defendant has left the jurisdiction of the court where the judgment was entered and where the writ issues, and is and resides in another state.

In Owens v. Henry, supra, O. recovered judgment in Pennsylvania against H. and F., both residents of that state. In 1865, H. removed to Louisiana and became a citizen of that state, and so continued until his death. In 1866 the judgment was revived by scire facias, the process being served on F. only. The judgment was again revived in like manner in 1871. In 1880, O. proceeded on the judgment against H. in the courts of Louisiana. He elected to stand on the scire facias proceedings of 1871. The Supreme Court of the United States held that the judgment had no binding force as against H. in Louisiana, for the reason that H. was not served with the process of scire facias, although there were two returns nihil, and had not voluntarily appeared. In the opinion of this court this case settles the principle that two returns nihil are not equivalent to service, except where the writ issues lawfully out of the court in the jurisdiction where the defendant resides. Service in this manner, to be good service, assumes that the defendant resides within the jurisdiction of the court issuing the writ, but cannot be found. In such case two returns nihil are equivalent to personal service, but two returns nihil are not service when the defendant does not reside within the jurisdiction of the court issuing the writ. If this be true in a case for the recovery of a sum of money, where judgment was lawfully issued in the first instance on personal service, and the proceeding is to revive a judgment, how much more ought it to be true in a case where the scire facias proceeding is an original suit, or in the nature of an original suit, and the defendant does not reside within the jurisdiction of the court issuing it, and neither resided nor was within the jurisdiction of that court at the time the recognizance was executed or default thereon taken or when the writ issued.

In Owens v. Henry, 161 U. S. 642, 16 Sup. Ct. 693, 40 L. Ed. 837, the court, in concluding its opinion, said, citing cases:

"Viewed as a new judgment rendered as in an action of debt, it had no binding force in Louisiana, as Henry had not been served with process or voluntarily appeared. And considered as in continuation of the prior action and a revival of the original judgment for purposes of execution, on two returns of nihil, it operated merely to keep in force the local lien, and could not be availed of as removing the statutory bar of the lex fori, for the same reason. Thompson v. Whitman, 18 Wall. 457 [21 L. Ed. 897]; Pennoyer v. Neff, 95 U. S. 714 [24 L. Ed. 565]; Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U. S. 287 [11 Sup. Ct. 92, 34 L. Ed. 670]; Steel v. Smith, 7 Watts &

S. 447; Evans v. Reed, 2 Mich. N. P. 212; Hepler v. Davis, 32 Neb. 556 [49 N. W. 458, 13 L. R. A. 565, 29 Am. St. Rep. 457]."

It is contended by the defendants that the Circuit Court of the Northern District of New York cannot interfere by injunction with the judgment of the court of the Eastern Division of the Southern District of Georgia, as that is a court of co-ordinate or concurrent jurisdiction, having equal power to grant the relief sought by injunction.

The complainant in this action is a resident and an inhabitant of the state of New York, where he owns real estate. The alleged judgment was obtained and entered of record in the District Court of the Eastern Division of the Southern District of the state of Georgia. Execution thereon, which, if the judgment is valid, may run to any state in the Union, was issued and delivered to the marshal of the Northern District of the state of New York, and he, under the authority thereof, has levied upon and proposes to proceed and sell, for the benefit of the United States, this real estate of the complainThe complainant alleges that the judgment upon which such execution was issued is absolutely void; that the court had no power to enter it. It is hardly necessary to say that if the judgment is void the execution thereon is also void. If the execution is void, then Clinton D. MacDougall, the marshal of the Northern District of New York, has no right or power whatever to levy upon and sell the real estate of the complainant in this action situated in the state of New York, where the complainant resides. The complainant cannot be compelled in any such manner to go to the state of Georgia and into the District Court of the Eastern Division of the Southern District thereof, and move there in that court to set aside the judgment. He had no legal notice of the proceedings which resulted in such judgment. In that action or proceeding he did not submit himself to the jurisdiction of that court, and it is not a case where the alleged defendant therein, the complainant in this action, is under any obligation whatever to proceed in that court. He has the right to invoke the protection of the Circuit Court of the United States in the district where he resides, and where his property wrongfully and illegally levied upon, and proposed to be sold, is situated. He has the right, in the district of his residence and where the subject-matter of the litigation is situated, to defend himself and his property against an unwarranted and an illegal seizure and sale of his real estate on process issued by the District Court in another state. This is an action by the complainant to protect and defend his property situate in this district-the Northern District of New York-against the illegal and unwarranted acts of the marshal. If the execution in the hands of the marshal is void, then that officer has no right to take any action under it. If the complainant would protect himself and protect his property, he must have these illegal acts restrained, and it is hardly reasonable to say or contend that he may maintain such an action against the marshal in the District Court of the Eastern Division of the Southern District of Georgia, where neither of the parties reside. If the execution in the hands of the marshal of the Northern District of New York, and by virtue of which he has levied upon and pro

poses to sell the real estate of the complainant, is void, then the marshal is a trespasser. He assumes to act as marshal, and in execution of a process issued out of one of the courts of the United States. The right of action is given by the laws of the United States which make the marshal responsible for trespasses committed by him in his official character. Bock v. Perkins, 139 U. S. 628, 11 Sup. Ct. 677, 35 L. Ed. 314; Buck v. Colbath, 3 Wall. 334, 18 L. Ed. 257; Texas & Pac. Railway v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829. A suit against a marshal of the United States for acts done in his official capacity is a suit arising under the laws of the United States. Sonnentheil v. Christian M. B. Co., 172 U. S. 401, 19 Sup. Ct. 233, 43 L. Ed. 492. The complainant in this action is under no obligation to lie still until his property has been sold and his title clouded. He may restrain, in a court of competent jurisdiction, all these illegal acts, and prevent either a sale of his property or any act that will cloud the title. A suit in equity, under some circumstances, may be maintained to set aside a void judgment, and of course to set aside an execution thereon, or to restrain the collection of a void judgment. First National Bank v. Cunningham (C. C.) 48 Fed. 510; Pac. R. of Nev. v. Miss. P. R. Co. et al., 111 U. S. 505, 4 Sup. Ct. 583, 28 L. Ed. 498; U. S. v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145; N. C. R. Mill Co. v. St. L. O. & S. Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565.

It is urged that this complainant is not entitled to equitable relief for the reasons that Gaynor, the principal, did not appear for trial, as required, but fled to Canada, where he is now sojourning, defying extradition, and that by so doing he escapes justice. But this action in equity has nothing to do with the apprehension, extradition, and trial of Gaynor. The United States is entitled, in an appropriate action in the proper jurisdiction, to collect the penalty of the recognizance entered into by Gaynor with Kirk as surety for his appearance, etc., in the Eastern Division of the Southern District of Georgia. But such collection must be made in due form of law through the instrumentality of a court having jurisdiction, and the surety must, on due notice, have his day in court in the proper jurisdiction, to present his defense, if he has one. How far the confused record made as to the time when Gaynor was in fact required to appear for trial may be explained, the court cannot now decide. Ordinarily the record in such a case cannot be contradicted, but here we have a confusion of statement that possibly may be subject to explanation by oral evidence.

This court does not decide that the alleged judgment is void, or that the execution now in the hands of the marshal of the Northern District of New York is void and may not be enforced, but from the foregoing considerations is forced to the conclusion that there is such serious doubt that the injunction pendente lite asked should be granted restraining Clinton D. MacDougall, as marshal of the Northern District of New York, from taking further proceedings to enforce or collect the execution until the trial and decision of this action on the merits. On the trial all the facts will appear fully. An order

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