Page:Federal Reporter, 1st Series, Volume 8.djvu/109

 EABBIMAN V. BOOEAWAI BEAOB PIBB CO. 95 �Th6 only question raised relates to the jurisdietiQu of the court. The libel was iiled on the nineteenth of August, 1380, and proeess therein was issued on the saine day. By the terms of the procesB the marshal was directed, in case the defendant could not be found within his district, to attach their goods and chattels within the dis- trict, to the amountsued io$. On the return-day of Ijhe proeess the marshal made return that the. respondent could not be found, and he had attached the iron pier, and property pertaining thereto, at Eockaway beach, property of the respondents. This was on August 19th, the day the proeess was issued. A motion was then made on the part of the defendant to vaeate the attachment upon two grounds, namely: that the iron pier was not goods and chattels within the meaning of the proeess; and, second, that the defendants could have hem iound by the exercise of reasonable dilligence on the part of the marshal. The motion was granted as i^o the iron pier upon the ground first above stated, It was denied as to the rest of the property.* Thereafter the defendant filed a stipulation to abide by and pay the amount of any final decree that might be awarded in the cause, and upon filing ouch a stipulation obtained the dis- charge from custody of the goods and chattels then held in custody by the marshal by virtue of the proeess. The cause was subse- quently tried upon pleadings and proofs, when the position was taken that the goods and chattels which the marshal had returned as having been attached by him on the nineteenth of August, were not, in faet, attached by him until after the twentieth of Augvist, and that inasmuch as on the twentieth of August the defendant, by its secretary, had appeared at the marshal's office and offered to accept service of the proeess, a subsequent attachment of goods and chat- tels of the defendant could not confer jurisdietion upon the court. �One difficulty with this position is that the jurisdietion of the court does not depend upon the attachment made by the marshal, but upon the stipulation given by the defendant. This stipulation was without qualification. It was given voluntarily, and not in obe- dience to any order of the court. It was not necessary to the defenee of the cause, nor in any way compelled. By virtue of this stipulation the defendant aequired possession of property then in the possession of the marshal. XJnder such circumstances, I do not see how it can be open to the stipulators upon that stipulation to say that the court has not aequired jurisdietion to enter a decree upon the stipulation. �*See Sarrman v. The Bockaway Beaeh Pier Oo. 5 Pbd. Rbp. 461. ��� �