Edwards v. Tanneret

ERROR to the Circuit Court for the District of Louisiana.

In 1862, during the late rebellion, the courts of the United States were broken up within the limits of Louisiana. New Orleans, however, being retaken by the army of the United States, and the national authority partially re-established in the State, though still liable to be overthrown by successes of the rebels, President Lincoln, in October, 1862, established by proclamation what was known as a 'Provisional Court,' with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty; and particularly all such powers and jurisdiction as belong to the District and Circuit Courts of the United States; conforming proceedings as far as possible to the course of proceedings and practice which has been customary in the courts of the United States and Louisiana.

In this Provisional Court, one Daniel Edwards sued Emile Tanneret. The plaintiff's petition began thus:

'The petition of Daniel Edwards, a loyal citizen, residing in the city of New Orleans, with respect shows, that Emile Tanneret, residing on False River, in the parish of Pointe Coupee, is justly and truly indebted unto your petitioner for balance of account in the sum of $4995.'

The writ or citation was thus:

'THE PRESIDENT OF THE UNITED STATES OF AMERICA TO THE UNITED STATES PROVISIONAL MARSHAL FOR THE STATE OF LOUISIANA, GREETING:

'You are hereby commanded to summon Emile Tanneret, a citizen of the State of Louisiana, to comply with the demand of Daniel Edwards, citizen of the State of Louisiana.'

Judgment was given for the plaintiff. However, in July, 1865, Tanneret, describing himself as 'a resident of Pointe Coupee, Louisiana,' and Edwards as 'a resident of New Orleans,' filed a petition, and got an injunction from the same court against the issue of any execution; the order being simply, 'Let the injunction issue as prayed for.'

On the 20th of July, 1866, the authority of the United States being now completely re-established in Louisiana, Congress passed an act, by the first section of which all 'suits, causes, prosecutions, or proceedings,' then in the Provisional Court, with the records thereof, were transferred to the United States District Court for the Eastern District of Louisiana, and authority was given to the Circuit Court to hear and determine such of the suits or proceedings thus transferred 'as the Circuit Court could take jurisdiction of under the laws of the United States.'

The second section enacted, that in case suits or proceedings were then pending in the Provisional Court which could not have been instituted in the Circuit Court, or the District Court for that district, the records, when removed into the District Court, should 'remain in said District Court without further action.'

The third section enacted that all judgments, orders, decrees, and decisions of the Provisional Court, relating to the causes transferred by the act to the District Court or to the Circuit Court held in the Eastern District of Louisiana, should at once become the judgments, orders, decrees, and decisions of the District Court or the Circuit Court, unless the same were inconsistent with the rules and proceedings thereof; and that they might be enforced as the judgments, orders, and decrees of the District Court or the Circuit Court.

In this condition of things, Edwards appeared in the Circuit Court for the District of Louisiana, and suggesting the recovery of his judgment, and that the defendant was 'an alien, and a citizen of the French Empire,' and himself 'a citizen of the State of Louisiana,' moved a transfer of his case into the Circuit Court. He made no allusion to the injunction, and having got a transfer of the case, issued execution.

The defendant's counsel then filed their own petition, alleging the injunction and denying the alienage of the defendant, asserting contrariwise that he was a citizen of Louisiana.

The court dismissed the case, as being a proceeding which, under the act of Congress, must remain in the archives of the District Court.

From this order of dismissal the present writ of error was taken.

Messrs. Weed and Clarke, for the plaintiff in error:

There were no State courts nor any Federal courts in Louisiana when the Provisional Court was established. This court was the creature of a social and civil necessity, temporary only. Any one might sue any one there. No allegation whatever of citizenship was necessary to give the court jurisdiction. Any allegation was therefore improper. The allegation of citizenship then that was made, was thus neither pertinent nor issuable, and was to be regarded as naught. It was only to give the Circuit Court jurisdiction and on the transfer that it became necessary that the alienage of one of the parties should appear; and the alienage did then appear in the motion and suggestion to the Circuit Court, on which a transfer of the case into that court was made. It was time enough to make it appear when its appearance was first wanted. It would have been more than senseless to have made it earlier. The unnecessary and unmeaning reference to citizenship in the proceedings in the Provisional Court don't affect the case. All things become new in the Circuit Court; and we have then a case where jurisdiction appears on the face of the pleadings. In such a case, if the alienage and consequent want of jurisdiction be denied, it should be taken advantage of by plea in abatement. We have nothing here but a motion. That is insufficient.

Mr. Durant, contra:

The radical defect of the opposite argument is, in supposing that the case when it appeared in the Circuit Court, was a new suit. It was the old 'suit, cause, prosecution, or proceeding,' 'transferred with the records thereof,' and these records showed a case not cognizable in the Circuit Court 'under the laws of the United States.' The subsequent averment in the Circuit Court of alienage of one party, was thus as ineffective as if the case had been begun in the Circuit Court on the same pleadings on which it was begun in the Provisional one.

A plea of an abatement is necessary only when the citizenship averred is such as to support the jurisdiction of the court, and defendant desires to controvert it. That is not this case, and the want of jurisdiction can be taken advantage of on motion.

Mr. Justice STRONG delivered the opinion of the court.