« PreviousContinue »
clearly follows from a subsequent provision of the mortgage law, saying (art. 43):
“In the case of No. 1 of the preceding article no cautionary notice may be made unless it is so ordered by a judicial decree issued at the instance of a person having a right thereto and by virtue of a document sufficient in the opinion of the judge."
In other words, the right in the case specified to the cautionary notice was not absolute, but relative. That is to say, the law, considering the right of an owner to dispose of his property and the injustice which would arise from limiting such right in every case merely because a suit was brought against him concerning the property, gives the right to the cautionary notice in such case, not merely because of the commencement of the suit, but makes it should depend upon an express order of the court granting the cautionary notice. As, therefore, the right to a cautionary notice did not arise in and by virtue of the pendency of the suit and could only have come from a judicial decree which was never applied for and never rendered, it must follow that the assumption that there was an existing dismemberment of ownership or lien arising from the conception that there was the absolute right to the cautionary notice has no foundation upon which to rest. It results that the contention reduces itself to this, that Romeu, the purchaser, who bought the property on the faith of the recorded title and in the absence of a cautionary notice, was bound because he had knowledge of the suit, although by operation of law the suit had no effect whatever upon the right of the owner to dispose of the property during its pendency, since the steps which the law provided as necessary to limit the right of the owner had not been taken. Thus to bring the proposition relied upon to establish that error was committed by the court below to its ultimate conclusion is to demonstrate its want of merit.
Of course, our ruling is.confined to the case before us, and we do not, therefore, intimate an opinion as to whether the
doctrine that notice is equivalent to registry is or not compatible with the public policy manifested by the requirements of the mortgage law prevailing in Porto Rico. And upon the hypothesis that the doctrine that notice is equivalent to registry is not incompatible with the requirements of the mortgage law, we must not be understood as deciding that one who bought where no cautionary notice had been registered, but with knowledge of a pending suit from which, owing to its character, the law gave an absolute right, without the prerequisite of judicial action to the cautionary notice, would not be liable to the extent of the property acquired pendente lite for the ultimate results of the suit. See, among others, paragraph 2 of article 42 of the mortgage law in connection with the second paragraph of article 43 of the same law.
DAVIS v. CLEVELAND, CINCINNATI, CHICAGO & ST.
LOUIS RAILWAY COMPANY.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF IOWA.
No. 123. Argued March 3, 4, 1910.-Decided April 4, 1910.
Even though the certificate is not in proper form this court can review
the judgment of the Circuit Court under $ 5 of the act of 1891 if the record shows clearly that the only matter tried and decided in that
court was one of jurisdiction. The fact that a writ of error was sued out from the Circuit Court of
Appeals to the Circuit Court and dismissed is not a bar to the jurisdiction of this court to review the judgment of the Circuit Court on
the question of its jurisdiction as a Federal court. A court cannot without personal service acquire jurisdiction over the
person, and it is open to one not served, but whose property is attached, to appear specially to contest the control of the court over such property; and in this case the appearance of the defendant for that purpose was special and not general.
Argument for Plaintiff in Error.
Neither the enactment of 8 5258, Rev. Stat., nor of the Interstate Com
merce Law by Congress abrogated the attachment laws of the States. Although different views have been taken in several States as to the
immunity from seizure and garnishment under attachment of cars engaged in interstate commerce and credits due for interstate transportation, this court holds that it was within the jurisdiction of the state court to seize and hold the cars and credits seized and garnisheed in this case, not withstanding their connection with interstate commerce.
The facts, which involve the liability to attachment of cars used in interstate commerce, are stated in the opinion.
Mr. Wilbur Owen, with whom Mr. Elbert H. Hubbard was on the brief, for plaintiff in error:
The cars and funds were subject to attachment and garnishment. The rolling stock of railway corporations is personal property, over which they have the power of alienation, and is subject to seizure, when not in actual use, by attachment or execution, or other valid process, the same as other personal property. Boston C. M. Ry. Co. v. Gilmore, 37 N. H. 410; Coe v. Col. Pig. & I. RR Co., 10 Ohio St. 372; Louisville & New Alhany Ry. Co. v. Borey, 117 Indiana, 501; Buffalo Coal Co. v. Rochester & $. L. Ry. Co., 8th Weekly Notes Cases, 126 (Penn.); Williamson v. N. J. S. R. Co., 29 N. J. Eq. 311; Randall v. Elwell, 52 N. Y. 521; Potter v. Hall, 20 Massachusetts, 368; Hall v. Carey, 140 Massachusetts, 131; Johnson v. Southern Pacific, 196 U. S. 1; Elliott on Railroads, vol. 2, p. 587; Drake on Attachinent, 7th ed., § 252A; 4 Cyc. Law & Procedure, p. 557; The "Winnebago" v. De Laney, 205 U. S. 354; Johnson v. Chi. & Pac. Elevator Co., 119 U. S. 388; The Robert Dollar, 115 Fed. Rep. 218; Ex parte McNeil, 13 Wall. 236; Menich v. Tehuantepec Co., 16 La. Ann. 46; Sibley v. Ferris, 22 La. Ann. 163; Haberle v. Barringer, 29 La. Ann. 410; Sherlock v. Alling, 93 U. S. 99.
Notwithstanding that Congress has passed laws inflicting severe penalties upon anyone who interferes with the transportation of mail, a boat owned by a mail contractor may be
attached if the mail be not on the boat at the time. Parker v. Porter, 6 La. Ann. 169; 4 Cyc. L., p. 569; Waples on Attachment, $ 723; Briggs v. Strange, 17 Massachusetts, 405.
The fact that chattels were when seized upon attachment, execution or replevin, subjects of interstate commerce or were in transit from one State to another, has never been regarded as preventing their actual seizure if within the jurisdiction of the court issuing the process, and they can even be held by garnishment of the carrier if not too late to arrest the shipment. Morrell v. Buckley, 20 N.J. L. 667; Santa Fe Ry. Co. v. Bossut, 19 Am. & Eng. Ry. Cases, 683; 5 Am. & Eng. Ency. of Law, p. 239; Waples on Attachment, 2d ed., 8 449; Moore on Carriers, pp. 34, 229, 232; Adams v. Scott, 104 Massachusetts, 164; Landa v. Holck, 129 Missouri, 663; The Robert Dollar, 115 Fed. Rep. 218, 222.
The cars in question when attached were not engaged in interstate commerce. They were, with one exception, standing "empty and idle" upon the tracks of the garnishees: they had reached their destination and had been unloaded. Nor. & West. R. R. Co. v. Commonwealth, 93 Virginia, 749. The record fails to establish any contractual relations between the principal defendant and the garnishees.
Even if the garnishees had the right of reloading the cars, it is not claimed that there was any intention on their part to exercise that right. Rausch v. Moore, 48 Iowa, 611.
No rule of law or statute requires any railway company to receive shipments from connecting lines and transfer them in the same cars in which they are tendered; nor are railway companies bound to allow their cars to go beyond their own terminals, and in practice railway companies often refuse to transport freight in any but their own cars, or to allow their cars to be used beyond their own terminals. Rev. Stat., $ 5228, authorizing through shipments is permissive only and imposes no affirmative duties upon railway companies. 6 Am. & Eng. Ency. of Law, p. 609; Kentucky Bridge Co. v. Louisville, 37 Fed. Rep. 567; Moore on Carriers, 453, 454.
Argument for Plaintiff in Error.
In order that a state law, or the action of state authorities under such law should be construed a "regulation of commerce between States," the operation of such law, or the action of such state authorities must be a direct interference or regulation, and directly and substantially hurtful to such commerce, not a mere incidental or casual interruption or regulation, or remotely hurtful. Sherlock v. Aling, 93 U. S. 99; L. & N. Ry. Co. v. Kentucky, 183 U. S. 503; N. Y., L. E. &W. R. R. Co. v. Pennsylvania, 158 U. S. 431; Henderson Bridge Co. v. Kentucky, 166 U. S. 150; L. & N. Ry. Co. v. Kentucky, 161 U. S. 677; Nashville Ry. Co. v. Alabama, 128 U. S. 96; Wall v. Nor. & West. Ry. Co., 44 S. E. Rep. (W. Va.) 294; Conery v.Q.O. & K. Ry. Co., 99 N. W. Rep. (Minn.) 365, are not similar in their facts to the case at bar.
Debts due a principal defendant from a garnishee are subject to garnishment wherever the garnishee could as in this case be sued by the defendant. See 88 3497, 3529 of the Code of Iowa.
There is no inhibition in the laws of Iowa preventing suits by a non-resident plaintiff in the courts of Iowa. Nor is it material that the debt was not made payable in the State where the attachment proceedings were instituted or that the garnishee's contract with the defendant is to pay the money in another State or country than that in which the attachment is pending. 14 Am. & Eng. Ency. of Law, pp. 804, 816; Harvey v. G. N. Ry. Co., 50 Minnesota, 405; Drake on Attachment, 7th ed., 597; Mooney v. Buford, 72 Fed. Rep. (C.' C. A.) 32; Mooney v. U. P. R. R..Co., 60 Iowa, 346; German Bank v. Ins. Co., 83 Iowa, 491; National Mire Ins. Co. v. Chambers, 53 N. J. Eq. 468; Blake v. Williams, 6 Pick. 286; Minor on Conflict of Laws, $ 125; Wyeth Hdw. Co. v. Lang, 127 Missouri, 242; Cross v. Brown, 19 R. I. 220; Harris v. Balk, 198 U. S. 215; Newfielder v. Ger.-Am. Ins. Co., 6 Washington, 336; M. &0. R. R. Co. v. Barnhill, 90 Tennessee, 349; Smith v. Tabor, 16 Tex. Civil Appeals, 154; Pomeroy v. Rand, 157 Illinois, 176; Cousins v. Lovejoy, 83 Maine, 467; Fithian v. Ry. Co., 31 Pa.