Barrow v. Hunton

APPEAL from the Circuit Court of the United States for the District of Louisiana.

On the 19th of January, 1874, Logan Hunton recovered in the Fourth District Court for the parish of Orleans, Louisiana, against F. M. Goodrich and one Pilcher, a judgment for $2,500, and interest at eight per cent per annum from May 1, 1861. On the 28th of that month, Goodrich filed a petition in said court, praying for a decree of nullity of the said judgment, and for an injunction in the mean time, setting forth as grounds for such relief that the judgment complained of was void, because it was founded on a default taken, and no lawful service of the petition and citation in the suit had ever been made on him, Goodrich; and because the partnership of Pilcher & Goodrich had been dissolved before 1866; and because he, Goodrich, had been discharged as a bankrupt in 1868. An injunction and citation were thereupon issued and served.

On Feb. 3, 1874, Hunton, the defendant in this proceeding, filed a petition for the removal of the action of nullity to the Circuit Court of the United States, alleging that he was a citizen of Missouri, and that Goodrich, the plaintiff, was a citizen of Louisiana; and after a hearing on the subject, an order of removal was made by the District Court. The plaintiff moved the Circuit Court of the United States to remand the cause; but this motion was denied, and the suit proceeded in the latter court. After various proceedings had, the plaintiff, by leave of the court, amended his petition to conform to the equity practice of the United States court, converting it into a bill in equity containing substantially the same averments, and praying the same relief as before. The defendant answered, and the parties went to proofs. Amongst the proofs adduced was an exemplification of the record and proceedings in the original suit in which the judgment was rendered, which the plaintiff in this suit sought to have declared null and void. On the 14th of February, 1876, the Circuit Court made a final decree, as follows: 'This cause came on to be heard upon the bill, answer, replication, and proofs, and was argued by counsel. On consideration whereof, it is ordered, adjudged, and decreed that the injunction herein issued by the State court was wrongfully obtained, and is therefore dissolved. And it is further ordered and decreed that the plaintiff's bill be dismissed at his costs.'

A rehearing having been refused, the decree was confirmed on the 28th of February, 1876.

From this decree the present appeal was taken; and it is sought to be reversed on two grounds, upon which errors are assigned, namely:--

1st, That the transfer was illegally made, and the Circuit Court was without jurisdiction.

2d, That it appears that the Fourth District Court, which rendered the judgment against F. M. Goodrich, was without jurisdiction, and therefore the judgment is null and void.

Goodrich having died pendente lite, Barrow, his administrator, was substituted in his stead.

Mr. George L. Bright for the appellant.

The Circuit Court had no jurisdiction of a suit seeking to annul the judgment of the State court, or to enjoin the execution thereof, and the transfer of the suit was made without authority of law. Bank v. Turnbull & Co., 16 Wall. 190; Gwin v. Breedlove, 2 How. 29; Freeman v. Howe, 24 id. 460; Dunn v. Clarke, 8 Pet. 1; Williams v. Bryne, Hempst. 472; Brooks v. Montgomery, 23 La. Ann. 450; Diggs v. Walcott, 4 Cranch, 179; Peck v. Jermes, 7 How. 623; Watson v. Jones, 13 Wall. 719; Dial et al. v. Reynolds et al., 96 U.S. 340; Ranlett v. The Collier White Lead Co., 30 La. Ann. 56; Goodrich v. Hunton, 29 id. 372; 2 Story, Const., sects. 1757, 1759; 1 Kent, Com., sect. 19, p. 451; Act 1793, 1 Stat. 334; Rev. Stat., sect. 720.

Mr. Thomas J. Durant, contra.

The question of the legality of the removal of the case to the Circuit Court cannot be first raised here. The appellant did not object to the jurisdiction of that court, but filed his bill, which was ultimately dismissed upon the merits. He ought not to be allowed to take his chances there, and, on an adverse decision, assign for error that the removal was unauthorized.

He now seems to consider that the Circuit Court was without jurisdiction of the cause, although it appears by the record that the complainant was a citizen of Louisiana, and the defendant, of Missouri. There was, therefore, no want of jurisdiction, ratione personarum.

But it is urged that the Circuit Court could not annul the judgment of the State court, and enjoin its execution.

It is perhaps a sufficient answer to this proposition to say, that the Circuit Court neither annulled nor enjoined that judgment. It is true that the appellant insisted before the lower court that it ought to do so; but the court refused so to grant the relief prayed for in his bill.

All the authorities, therefore, which have been cited in support of the first assignment of error, if they have any application, must sustain the action below.

MR. JUSTICE BRADLEY, after stating the facts, delivered the opinion of the court.