Stockwell v. Bates — 10 Abb. Pr. 381

Majority

p. 381

STOCKWELL against BATES.

Supreme Court, First Dist;

Special Term, March, 1871.

Headnote

Action against State Treasurer.—Attachment.

An action against one State, in the courts of another, cannot be sustained by joining, with the State sued, one of its officers, against whom no cause of action exists, and no judgment can be had, in order to attach money of the State within the jurisdiction of the court, and -thereby coerce its appearance.

Motion to vacate attachment.

The plaintiff, John C. Stockwell, holding coupons issued by the State of Illinois, and many years overdue, brought an action to recover thereon, naming as defendants, Erastus N. Bates, State treasurer, and the State of Illinois. Certain moneys of the State of Illinois being on deposit in the city of New York, and the treasurer being found here, the summons was served upon the treasurer, and an attachment, issued as a provisional remedy under the Code, was levied on the moneys. The defendant, Bates, now moved to vacate the attachment.

Amos Q. Hull, for the plaintiff.

Chapman, Scott & Crowell, for the defendant.

The claim, as was conceded by the plaintiff’s counsel, is only against the State of Illinois. There is no cause of action against Mr. Bates. The case is not within the principle of Osborn v. Bank of the United States ( 9 Wheat., 738 ). .

There, an officer of the State was attempting to make a collection which was sought to be restrained. The action could properly be brought against him, although the State was ultimately to be benefited by the money. When an individual is liable to be sued, and a State has any interest in the litigation, it may be made a party, to give it an opportunity to appear, if it chooses; but I find no case which will justify, in a suit against a State, upon a cause of action solely against it, the joinder of a merely nominal party, against whom no cause of action exists, and no judgment can be had, so as to attach money of the State, and thereby coerce its appearance.

I think the attachment must be vacated.