Oakes v. Lake

delivered the opinion of the Court.

This is an action under the Idaho “ claim and delivery ” statute brought by petitioner in the federal district court for the district of Idaho. The complaint alleges that petitioner is a resident and inhabitant of the State of Oregon, and is the duly qualified receiver of the property which is the subject matter of the action, having been so appointed by an Oregon state circuit court; that follow

The answer, among other things, denies that petitioner took possession of the cattle as alleged, or any of them, and avers affirmatively that respondent in his official .capacity seized the cattle upon a writ of execution duly issued by an Idaho state district court.

The case was tried before the federal district court and a jury. Petitioner offered evidence tending to show that he had taken actual possession of the cattle in the State of Oregon, and that the cattle thereafter were found in Idaho and there seized by respondent. At the conclusion • of petitioner’s case respondent moved for non-suit and dismissal, upon the grounds, (1) that the proof shows that plaintiff had no capacity to sue in the courts of Idaho, since he had. neither title to the property under the Oregon law or the order of the court appointing bim, nor actual possession thereof, either in the State of Oregon or in the State of Idaho; (2) that an action of replevin ■will not lie in a United States court against a sheriff to take property from the possession of a state court. A third ground was urged, which we do not consider. It is without merit and is not pressed here. The court granted the motion, saying “ that the proof is insufficient to initiate the liability on this hearing.” •

“ Granting the soundness of the contention that the receiver was entitled to the undisturbed possession of the property and assuming that he actually had such possession [italics supplied], and granting or assuming that he had the power to sue locally in replevin for an unlawful interference with his right of possession, nevertheless such right of possession did not vest him with' the title necessary to sue in the court below without an ancillary appointment therein; and he was not entitled to bring the suit as a matter of comity.” 62 F. (2d) 728 , 730.

Upon the same assumption, namely, that the receiver had reducéd the property to. his actual possession in the State of Oregon, we reach a different conclusion.

The general rule undoubtedly is that an ordinary chancery receiver, having no other authority than that arising from his appointment as such, cannot as of right maintain an action in a state other than that in which he was appointed. The decision in Booth v. Clark, 17 How. 322 , to that effect has been uniformly followed by this court. See, for example, Great Western Mining Co. v. Harris, 198 U.S. 561 ; Sterrett v. Second National Bank, 248 U.S. 73 . The very terms in which the rule is expressed, however, clearly recognize that where the receiver has “ other authority than that arising from his

The foreign receiver may maintain such a suit, so far at least as the federal courts are concerned, where title to the property in question has been vested in him by conveyance or statute. In Bernheimer v. Converse, 206 U.S. 516 , it was held that a receiver might sue in a foreign jurisdiction to collect upon the statutory liability of stockholders of a corporation, where the statute of the state conferred the right upon the receiver as quasi-assignee. Following that decision, this court, in Converse v. Hamilton, 224 U.S. 243 , 256 et seq., while reiterating the rule laid down in Booth v. Clark, supra, pointed out that the receiver suing in the Hamilton case was not merely an ordinary chancery receiver, but much more; that under the laws of the state of his appointment he became a quasi-assignee, vested with the rights of the creditors against the stockholders, and charged with the enforcement of those rights in the courts of the state and elsewhere; that his right to maintain an action in another state properly could not be denied as presenting a question only of comity unaffected by the full faith and credit clause of the Federal Constitution. The case involved the right of a receiver of an insolvent Minnesota corporation to maintain a suit in Wisconsin against two stockholders to enforce an asserted double liability imposed by the Minnesota statute. The Wisconsin court refused to entertain the suit, holding it to be a matter of comity; but this court, denying that view, reversed on the ground that thereby the laws of Minnesota and the judicial proceedings of that state had not been accorded the faith and credit to which they were entitled under the Federal Constitution.

In the case just dealt with, and in other cases where the receivership property has been assigned to the receiver by

Coming immediately to the present .case, the authorities, federal and state, are in practical accord to the effect that where the receiver appointed in one state has taken possession of property which thereafter is found and seized upon process in another state, the receiver may maintain an action in the latter state to recover possession or for other appropriate relief. The Willamette Valley, 66 Fed. 565 , 567; Hopkins v. Lancaster, 254 Fed. 190 , 191-192; Wilkinson v. Culver, 25 Fed. 639 ; Jenkins v. Purcell, 29 App.D.C. 209 , 215; Lyon v. Russell, 41 App.D.C. 554 , 559; Pond v. Cooke, 45 Conn. 126 , 132; Robertson v. Staed, 135 Mo. 135 , 137; 36 S.W. 610 ; Woodhull v. Trust Co., 11 N.D. 157 , 163-164 ; 90 N.W. 795 ; Cagill v. Wooldridge, 67 Tenn. (8 Baxt.) 580, 582-583. Other cases might be cited to the same effect. . The only decision which we have found definitely to the contrary is Humphreys v. Hopkins, 81 Cal. 551 ; 22 Pac. 892 , but in which there is a convincing dissenting opinion in harmony with the general current of authority.

In some of the cases cited the courts seem to have put their determination in favor of the receiver upon the ground of comity. With this view, however, we do not agree. It is a matter of right, as this court has said. Converse v. Hamilton, supra. The true rule is stated in Robertson v. Staed, supra, by the supreme court of Missouri, where it was held that where the receiver has taken possession of property in pursuance of his appointment, a special property is thereby vested in him which enables him to maintain a suit for the recovery of the property in a foreign jurisdiction; and that the principle upon which that may be done is “ one of law and not of comity.”

Respondent’s position is based upon the view that since a state court cannot interfere with property held by a United States marshal under process issued by a federal court, by parity of reasoning a federal court cannot interfere with property held by a sheriff under process issued by a state court. Petitioner—making no attempt to distinguish the one case from the other—in terms neither concedes nor denies this .view. He replies simply that under the Idaho statute no conflict between the courts is involved, for, since the sheriff’s possession has not been and need not be disturbed, there is no question of conflict of possession before the court. He rests his case, in this respect, upon the provision of the statute allowing judgment for the value of the property where delivery cannot be had. In this aspect, we put aside the question of interference with the jurisdiction of the state court as not being really involved. If, upon a new trial, petitioner and. respondent unite in the -view that a delivery cannot be had, we perceive no reason why the trial court may not proceed with the case upon that theory and dispose of it as one to recover the value of the property and damages; and we hold accordingly. Should a different situation be presented, it can be appropriately dealt with when it arises. That under'the Idaho statute the court may thus dispose of the case when for any reason a delivery cannot be had, is a proposition which finds abundant support in the-decisions. Boley v. Griswold, 20 Wall. 486 ; Erreca v. Meyer, 142 Cal. 308 , 310; 75 Pac. 826 ; Claudius v. Aguirre, 89 Cal. 501 , 504, et seq.; 26 Pac. 1077 ; De Thomas v. Witherby, 61 Cal. 92 , 97; Donovan v.

In Porter v. Davidson, 62 Fed. 626 , 629, a similar conclusion was reached under a North Carolina statute. That court, after stating the rule laid down in Freeman v. Howe, supra, Covell v. Heyman, supra, and other cases, held that these decisions went only to the possession of the res, and that the remedy might be pursued against the sheriff for damages in any court. “ The proceedings of the plaintiff in this ease by which he took from the possession of the sheriff the chattels levied on was ancillary, not in any way affecting the merits of the original case. That can go on without conflicting with any of the cases quoted above.”

The court of appeals did not consider the question whether petitioner had made out a case of actual possession in Oregon. Nor can we say from the very general words of the judge in granting respondent’s motion and in discharging the jury that this precise question of fact was passed upon by the trial court. We, therefore, do not consider it, but leave it to be disposed of in the further proceedings which must be had in the district court.

Judgments reversed and cause remanded to the district Court for further proceedings in conformity with this opinion. Reversed.