Davis v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

delivered the opinion of the court.

This case presents a question of jurisdiction arising from the levy in attachment proceedings on freight cars alleged to have been engaged, when attachéd, in interstate commerce. The case is here on certificate.

Plaintiff in error, as executor of the estate of Frank E. Jandt, • brought an action, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for causing the death of Jandt, a statute of Illinois giving such an action to the personal representative of a person whose death has been caused by “wrongful act, neglect or default.” The cause bf action arose inf Illinois. The action was brought, however, in the District Court of Woodbury County, State of Iowa, and under the laws of the latter State writs of attachment and garnishment-were issued and levied Upon certain cars of the C. C. C. & St. L. Ry._.Co., in the possession of the other defendants in error, referred to hereafter as the garnishee companies. Notice of garnishment was duly served on the garnishee companies, and each of them filed answers. Plaintiff in the action, and we will so refer to him, controverted by proper pleadings the answers, and demanded that evidence be taken on the issues joined.

The original notice was served on the C. C. C. & St. L. Ry. Co:, at its principal place of business in the State of Ohio; also notice of attachment and" garnishment.. It filed a petition for removal of the action to the Circúit Court of the United States for the Northern District of Iowa, Western Division. Its peti

Plaintiff filed a “resistance” to the motion to quash and to the motion of the garnishee companies, and alleged that a special appearance was “unwarranted and unauthorized by law,” and that as the purpose sought by the motion of the defendant company could only be had by a general appearance the special appearance should be construed to be such and subject the “person of the defendant as •well as the prop

The answers of five of the garnishee companies denied indebtedness to the C. C. C. & St. L. Ry-. Co., averred the existence of agreements as to the cars substantially as set out by that defendant, also their duties as common carriers under the acts of Congress, and that the cars were in their possession in pursuance of the agreements with the defendant,- and were to be returned empty or loaded in the usual and customary course of business. The other companies also denied indebtedness to the C. C. C. & St. L. Ry. Co., and in effect set up the defense that the cars were in interstate comniérce business.

On the twenty-second of May, 1906, the court sustained the motion- to quash the judgment and discharge the gar

The time for the allowance and filing of the bill of exceptions was extended to October 28, 1906, and on the twenty-eighth of September it was allowed, the order reciting as the date “being one of the regular days of the May A. D. 1906 term of said court.” The bill of exceptions also recited that it was submitted to the court, with a prayer that it “be signed and certified by the judge, and approved by him and made a part of the record in said cause, preparatory to the prosecution of a writ of error from the said Circuit Court of the United States to the Supreme Court of the United States.” It concludes as follows:

“And the court having examined said transcript of the record, papers and proceedings, hereby certifies that the same contains the entire record in said cause, including the plaintiff’s petition, the answers of the garnishees, the defendant’s motion to quash and set aside service and the plaintiff’s resistance thereto, and all of the proceedings had thereunder in reference thereto, including the opinion, orders and judgment of the court thereon, and the exceptions of the plaintiff thereto, and all of the record submitted to the court upon which the judgment herein was rendered.

“On consideration whereof the court does allów the writ of error upon the plaintiff giving bond according to law in the sum of $500, which shall operate as a supersedeas bond.

“And in this case, I, the undersigned, judge of the Circuit ■Court of the United States in and for the Northern District of Iowa, Western Division, further hereby certify that in sustaining the motion to quash the attachment and discharging the garnishees, and in dismissing the action as to the principal defendant, and taxing the costs, to the plaintiff, the sole ques

“This certificate is made conformable to[1] the act of Com gress of March 3, 1891, chapter 317, and the opinion filed 'hérein is made a part of the record, and will be certified and sent up as part of the proceeding, together with this certificate.”

For the opinion of the court, see 146 Fed. Rep. 403 .

A writ of error was sued out from the Circuit Court of Appeals, according to the admission of counsel, though there is nothing in the record to show it, which writ was dismissed. 156 Fed. Rep. 775 .

A motion is made to dismiss the writ of error, and in support of the motion it is urged '(1) that the certificate as to jurisdiction was not granted during the térm at which the judgment was rendered; (2) that the writ of error was not perfected in time as required by law, in that the writ and certificate were allowed on the twenty-eighth of September, 1906, and were not prosecuted in this court until April, 1908; (3) that the certificate is not sufficient in law nor proper in form, in that it does not state any facts or propositions of law upoil which the question-of the court’s lack of jurisdiction rested; (4) that the jurisdiction of the court as a Federal court was not put in issue; (5) that the case having been taken to the[1] Circuit. Court of Appeals and there decided that- the writ of error should be to that court and not to the Circuit Court, the latter court, it is urged, having lost jurisdiction of the case; (6) there is po certificate of a jurisdictional question in the order allowing the writ of error.

The first and second grounds in support of the motion to dismiss are based upon a misapprehension of the record. The

The grounds of the motion based on the form or sufficiency of the certificate are not tenable. Even if we should admit, which we do not, that the certificate is not, as it is contended, in proper form, the record, shows clearly that the only matter tried and decided in the Circuit Court was one of jurisdiction. This is sufficient. United States v. Larkin, 208 U. S. 333 , 339.

The other grounds urged to support the motion to dismiss all depend upon the proposition whether the question of the jurisdiction of the Circuit Court as a Federal court was presented. If so, the writ of error from the Circuit Court- of Appeals is no bar to the present writ of error. Excelsior W. P. Co. v. Pacific Bridge Co., 185 U. S. 282 ; United States v. Larkin, supra. And if so, the way is clear to a decision of the question on the merits.

As we have shown, the Circuit Court decided that it had no jurisdiction over either the person or the property of the principal defendant, the C. C. C. & St. L. Ry. Co. The first, non-jurisdiction over the person, depending, as the court considered; upon the second, non-jurisdiction over the property, as we understand the opinion. And this view of it the Circuit Court of Appeals took.

The latter court stated the questions to be, “Was the defendant’s appearance to contest the validity of the judgments and garnishments a general one? Were the cars and credits of the defendant subject to judgment and garnishment? In other words, did the trial court secure such dominion over person or property by appearance or process as authorized it to proceed to trial of the action and render a valid judgment upon the issues involved? The trial court answered them in the negative and dismissed the action for the want of jurisdiction. In respect to the essential character of these questions, they are not distinguishable from

The ruling of the Circuit Court dismissing the- action is attacked upon the grounds, (1) that the appearance of the C. C. C. & St. L. Ry. Co. was a general appearance, and, being so, •the railway company submitted itself to the jurisdiction of the court, “regardless of the seizure of the" attached property;” (2) that the property was subject to attachment.

1. It is not controverted that, if the property was subject to attachment, the procedure prescribed by the laws of Iowa was duly observed and hence, it is contended, that the property having been seized under the jurisdiction of the court under valid'regular process, the motion to quash the attachment was based on matters dehors the record, going to the jurisdiction of the court over the subject-matter of the action, and the court had jurisdiction over the person of the railway company. “A special appearance”’ it is contended, “can never serve a

The ruling of the Circuit Court, we think, was broader than plaintiff conceives it to have been. It appears from the record that the C. C. C. & St. L. Ry. Co. was a corporation of Indiana and Ohio, and that certain of its freight cars were attached in' Iowa in the hands of. the garnishee companies, and that there were certain credits due to it from some of the latter companies, on account of interstate commerce freight. In other words, it fairly appears upon the face of the complaint in the action and the attachment papers that the cars had been sent into the State in the transportation of interstate commerce. It is true, it was also contended, that an issue was presented by the affidavits upon the motion to quash as to what contractual arrangements existed between the company and the other companies as to the right of the latter companies to reload the cars and so return them, but there was no dispute that it was their duty to receive them. Besides, the bill of exceptions contains the following: “ No evidenced submitted by the plaintiff in opposition to the motion of defendant to quash the attachment, or in support of its pleading controverting the answer of the several garnishees, and the matters are submitted upon the record, including such motion and admission of the pleadings.”

The question, therefore, was submitted to the court whether the cars, under the circumstances, were engaged in interstate commerce when they were attached, and the court considered it to be immaterial that the cars had not started on a return trip, saying that: “The cars of defendant when brought into the State of Iowa to complete an interstate shipment of property were being used in interstate commerce, and were being so used while waiting, at least, a reasonable time to be loaded for the return trip.”

The court further decided that aeots, if any, which were due from the garnishee companies to the C. C. C. & St. L, Ry. Co. for its share of the price of carriage were “ as much a part of

2. The next contention of plaintiff is that the appearance of thé C. C. C. & St. L. Ry. Co. was a general appearance and sub-, mitted its person to the jurisdiction of the court. In other words, it is contended that the person over whom personal jurisdiction has not been obtained cannot appear specially to set aside the attachment of his property, which we must assume in order to completely exhibit the contention, is valid.

' We cannot concur in the contention. It is supported, it is true, by some cases, but it is opposed by more. Drake on Attachments, § 112, and cases cited. The stronger reasoning we think too is against the contention. A court without personal service can acquire no jurisdiction over the person, and when it attempts to assert jurisdiction over property it should be open to the defendant to specially appear to contest, its control over such property; in other words to contest the ground of its jurisdiction. Harkness v. Hyde, 98 U. S. 476 ; Railway Co. v. Denton, 146 U. S. 206 ; Goldey v. Morning News, 156 U. S. 518 , 523; Railway Co. v. Brow, 164 U. S. 271 , 278.

The appearance of the C. C. C. & St. L. Ry. Co. was not to object to the subject-matter of. the action, as it is contended by plaintiff. The subject-matter of the action is a demand for damages, which.can only be prosecuted to efficient judgment and be satisfied out of the property attached. Clark v. Wells, 203 U. S. 164 . The jurisdiction of the court, therefore, depended upon the attachment, and the appearance to set that aside was an appearance to obj ect to the jurisdiction. In other words, the defendant was only in court through its property, and it appeared specially to show that it was improperly in court.

These contentions being disposed of, we are brought to the question whether the cars were “immune from judicial process” because engaged in interstate commerce. The question has come up in several bf the state Gourts and different views have been taken. The question has been answered in the

The answer to the question is, therefore, certainly not obvious, and counsel, realizing it, have pressed many considerations on our attention. Their arguments result in cer-' tain contentions. The plaintiff’s contention is, that even though the cars in question had been or were to be used in interstate commerce, their attachment was not a regulation of such commerce, and that, they were as legally subject to attachment as the property of any other non-resident. The contention of the defendants is an exact antithesis of that of plaintiff. It is that the state laws cannot be permitted to impede or impair interstate traffic or the usefulness of the facilities for such traffic. And, further, that the provisions of the Interstate Commerce Act, providing for the establishment of through

In our discussion we may address ourselves to the contention of defendants. They do not contend that the laws of the State have the purpose to interfere with the interstate commerce, or are directly contrary to the acts of Congress. They do contend, however, that “to permit the instrumentalities used in the interchange of traffic by railway common carriers to be seized on process from various state courts does directly burden and impede interstate traffic within the inhibition of the acts of Congress.” In other words, that the acts of Congress constitute a declaration of exemption of railroad property from attachment, and, of course, from execution as well, by reason of their provisions for continuity of transportation.

This can only result if there is incompatibility between the obligations a railroad may have to its creditors and the obligations which it may have to the public, either from the nature of its service or under the acts of Congress. Obligations it surely will have to creditors, inevitable even in providing equipment for its duties — inevitable in its performance of them. It would seem, therefore, that the contentions of the defendants are but deductions from the broader proposition that all of the property of the railroad company is put apart in a kind of civil sanctuary. And one cáse (Wall v. Railroad Company, supra) seems to give this extent to the exemption. Indeed, the decision in the case at bar seems to do so, the court holding, as we have seen, that the C. C. C. & St. L. Ry. Co.’s share of the compensation for carriage was as. much a part of interstate commerce as the actual carriage of property. A still broader proposition under the contention might be urged. If the property have such character that all obligations of the company must yield to the public use or to'the obligations imposed by Congress, the railroad company itself, it might be contended, cannot burden its property and that its property is taken from it as an asset of credit, the means, it may be; of performing the very duties enjoined upon it, and the anomaly

It is very certain that when Congress enacted the Interstate Commerce Law it did not intend to abrogate the attachment laws of the States. It is very certaip that there is no conscious purpose in the laws of the States to regulate, directly or indirectly, interstate commerce. We may put out of the case, therefore, as an element an attempt of the State to exercise - ■ control over interstate commerce in excess of its power. Indeed, the questions in this case might arise upon process issued out of the Circuit Court of the United States under the Federal statutes. For, by §§ 915 and 916 of the Revised Statutes, remedies “by attachment or other process,” before judgment, and “by execution or otherwise,” after judgment, are given litigants in common law causes in the Circuit and District Courts of the United States.

The questions in the case, therefore, depend for their solution upon the interpretation of Federal laws. May the laws of the States for the enforcement of debts (laws which we need not stop to vindicate as necessary foundations of credit and because they give support to commerce, state and interstate), and the Federal laws which permit or enjoin continuity of transportation, so far incompatible that the provisions of the latter must be construed as displacing the former? We do not think so. Section 5258 of the Revised Statutes is permissive, not imperative. It removed the “trammels interposed by State enactments or by existing laws of Congress” to the

The Interstate Commerce Law therefore is directed against the acts of railroad companies which may prevent continuity of transportation. Section 5258 of the Revised Statutes was directed against the trammels of state enactments then existing or which might be attempted. In neither can there be discerned a purpose to relieve the railroads from any obligations to their creditors or take from their creditors any remedial process provided by the laws of the State, and, as we have seen, provided by Federal law as well. May it be said that such result follows from the use of property in the public service? A number of cases may be cited against such contention. We have already pointed out what might be contended as its possible if not probable consequences. In a recent case in this court a lien imposed under the law of Michigan upon a vessel to be used in domestic and foreign trade was sustained. To the contention that the enforcement of the lien while the vessel was engaged in interstate ^ommoree, was unlawful and

The interference with interstate commerce by the enforcement of the attachment laws of a State must not be exaggerated. It can only be occasional and temporary. The obligations of a. railroad company are tolerably certain, and provisions for them can be easily made. Their sudden assertion can be almost instantly met; at any rate, after short delay and without much, if any, embarrassment to the continuity of transportation. However, the pending case does not call for a very comprehensive decision on the subject. We only decide that the cars situated as this record tends to shpw that they were when attached, and the amounts due from- the garnishee companies to the C. C. C. & St. L. Ry. Co., were not exempt from process under the state laws, and that the court had, therefore, jurisdiction of them and through them of the C.' C, C. & St. L. Ry. Co.

Judgment reversed and■ the cause remanded with directions to proceed in accordance with this opinion.

Mr. Justice Holmes took no part in the decision.