Rock River Bank v. Hoffman — 14 Abb. Pr. 72

Majority

p. 72

ROCK RIVER BANK a. HOFFMAN.

Supreme Court, First District; General Term,

February, 1862.

Headnote

Privilege or Consuls.—Jurisdiction.

Since the Constitution and laws of the United States prohibit the State courts from taking cognizance of suits affecting consuls, a State court has no jurisdiction to grant process against a consul, in an action in which he is named as a defendant.^[1]

Process so granted being invalid, a revocation of the exequatur of the consul, after the commencement of the suit, is no answer to a motion to dismiss the action and vacate the process.

The fact that the consul is sued with others upon the joint liability of all, does not alter the case. The United States courts have jurisdiction in such case ; and the State court cannot allow the consul’s name to be struck out and the action to proceed against the other defendants.

Appeal from an order refusing to dismiss the complaint and vacate an attachment which had been granted in the cause.

p. 73

This action, and another one which was brought by George P. Haylor and others at the same time, were brought against Francis A. Hoffman, Otto Gelpcke, and Alexander Seller, who were partners in business in Chicago, Illinois. The causes .of action were partnership debts. The plaintiffs obtained attachments to be issued on the ground of the non-residence of the defendants.

At special term, in December, 1861, the defendants moved to dismiss the complaint and vacate the attachment, on the ground that the defendant Hoffman was a consul for the Grand Duchy of Saxe Coburg Gotha, duly recognized as such by the Hnited States.

On the motion it was proved on the part of defendants, that at the time the action was brought and the attachment was levied, Hoffman was such consul. In opposition, plaintiffs showed that since the motion was noticed, the government of the Hnited States had, on the application of the plaintiffs, revoked the exequatur of Hoffman until he should furnish to the government satisfactory explanations of his attempt to defeat the ends of justice, by using his official position to avoid the proceedings against himself and partners.

The court denied the motion, with costs.

From the order entered thereon the defendants appealed.

B. Roelker and Gilbert Dean, for the appellants.

J. T. Doyle and Charles W. Prentiss, for the respondents.

When the attachment was granted, the defendant Hoffman was consul for the Duchy of Saxe Coburg Gotha, for the State of Illinois.

It issued against the property of all the defendants. The Constitution and laws of the Hnited States prohibit the State courts from taking cognizance of suits affecting consuls.

It is thus apparent that this court were without jurisdiction to grant process of any kind against Hoffman when the attachment herein was issued;

The question of jurisdiction must be disposed of according to the facts existing when the action was commenced or the process issued. Being without jurisdiction, then, there was no basis upon which to incorporate it subsequently.

p. 74

We think that the subsequent revocation of the exequatur of the consul did not give validity to process which was before invalid.

We think the case of Yalerino a. Thompson ( 7 N. Y., 576 ) is conclusive upon the questions here involved.

The Court of Appeals there held, that the courts of the United States have jurisdiction where a consul is sued with another person. The court, in that case, say: “ The Constitution extends the jurisdiction of the United States courts to all cases ‘ affecting consuls,’ and the Judiciary Act makes it exclusive of the State courts in all suits against consuls.’ ” That casé further holds, that where a consul and another are necessarily co-defendants, it brings the co-defendant within the jurisdiction of the United States courts, by unavoidable implication (p. 582). We think this decision of the first court of our State must be considered conclusive here.

This action being against a consul, the State courts are ousted of jurisdiction.

There is no analogy between the contract of an infant, feme covert, bankrupt, &c., and the contract of a consul, when made jointly with others.

In an action against an infant or feme covert, on a joint contract with others, the name of such party may be stricken out, and the action proceed against the other joint contractors, because there never was any actual contract made by the infant or feme covert.

The contract of the consul is, however, a valid and binding obligation, whether made jointly with others or not. There is no principle upon which his name can be stricken from the .action without disturbing the liability of the other joint contractors with him.

We are compelled to hold that this court have no jurisdiction over the action, and, of course, none to grant an attachment therein.

The order appealed from is reversed, and the attachment is vacated. Ho costs are allowed.

. Ihgkahaw, P. J., and Clkkke, J,, concurred.