Bradford v. Brown

22 App. D.C. 455, 1903 U.S. App. LEXIS 5547

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 20, 1903
• Docket: No. 1338
• Status: Published

Opinion

Mr. Chief Justice Armey

delivered the opinion of the Court:

This case is brought into this court by special appeal. The appeal is taken from an order refusing to quash an attachment issued out of the supreme court of the District of Columbia by the appellee, Robert W. Brown against the appellant James T. Bradford, who is a nonresident of the District of Columbia, and which attachment was levied upon certain real estate of the appellant situate in this District. The facts of the case are shown to be these:

The cause of action upon which the proceeding is founded is a claim for money deposited by the plaintiff Robert W. Brown with the defendants Leonard C. Bailey, John A. Pierre, Win-field S. Montgomery, and J ames T. Bradford, under the name of the Capital Savings Bank, to the amount of $199.63, with interest thereon from January 21, 1902. Prior to January 3, 1903, Brown, the appellee, instituted a suit before a justice of the peace of this District, against the four persons named, to wit: Bailey, Pierre, Montgomery, and Bradford, to recover the claim stated. The appellant Bradford, being a nonresident of this District, was not served with process, and did not appear; but the other three defendants were served with process, and appeared to the action pending before the justice. The three defendants thus served with process and appearing to the action, on February 3, 1903, filed a petition in the supreme court of the District of Columbia, under § 8 of the Code of the District, upon the ground of concurrent jurisdiction, for a certiorari, denying the claim of the plaintiff and claiming the right of trial by jury. In this application, Bradford did not, in terms, unite. Upon this application the writ of certiorari was issued, and the justice, in obedience to the writ, returned into the supreme court of the District the entire proceeding as instituted and then pending before him, without severance of Bradford, the defendant, who had not been served with process, and who did not, by name, join in the application for the certiorari. Upon the return of the justice, the cause acquired a standing in the supreme court of the District as if it had been originally instituted therein.

Section 7 of the Code of this District provides, that trial by jury before justices of the peace shall be abolished; and by § 8 it is provided, that the supreme court of the District, in general term, shall make rules regulating the practice and pleading' before justices of the peace, and in relation to appeals from their judgments, not inconsistent with law, and may alter and amend the same from time to time, and shall also fix the fees to be charged by said justices of the peace, and alter them from time to time as justice may require: Provided, that in all cases of concurrent jurisdiction the defendant may remove the case for trial into the supreme court of the District by writ of certiorari, to be awarded by said court-, or one of the justices thereof, upon a petition under oath, the form and substance whereof shall be prescribed by said court. And § 9 declares that “The said justices of the peace shall have jurisdiction in all civil"'cases in which the amount claimed to be due for debt or damages arising out of contracts, express or implied, or damages for wrongs or injuries to persons or property, does not exceed $300, including all proceedings by attachment; * *• * and said jurisdiction shall be exclusive when the amount claimed for debt or damages or the value of personal property claimed, does not-exceed $50, and concurrent with the said supreme court when it exceeds $50.”

The amount claimed in this case gave concurrent jurisdiction to the justice of the peace Avith the then and still existing jurisdiction of the supreme coiArt of the District; and when the case was brought into the supreme court by certiorari, it was then, and from thence became, a case pending in the supreme court, as fully and to all intents and purposes as if it had been originally instituted in that court The manifest object of extending the jurisdiction of the justice of the peace, to be exercised in. cases concurrently wdth the jurisdiction of the supreme court of the District, was to avoid the delays and greater expense attending the litigation in the latter court; and' no construction should be placed upon the provisions of the Code that would defeat the objects in view, by multiplying litigation by severing defendants in joint actions, or by increasing the cost of proceeding. The statute certainly never contemplated the separate and independent right of each and every defendant, no matter how many, to apply for and have removed by certiorari into the supreme court the original case pending before the justice of the peace, by piecemeals, and at different stages of the proceeding, and thus make several cases in the supreme court of the one that was pending before the justice; or to leave a part of a pending case to be tried by the justice, while another part is taken into the supreme court for trial. This was clearly not the design of the authors of the Code. The certiorari when granted operates upon and requires to be returned into the supreme court for trial there the entire case pending before the justice, and this whether all the defendants have been served with process or not. From the time that the certiorari issues and is served upon the justice the latter ceases to have right to exercise further jurisdiction in the premises, — his sole duty being to remove the case as required by the writ'. If further process be required to secure the appearance of parties, or otherwise, such process must issue from and be returned to the supreme court. It is the right, however, of any defendant to confess judgment, if he Chinks proper so to do, before the case is removed and while it is pending before the justice; and having done so he could not be required to join in the application for certiorari. But it is the right of each and all of the defendants to have trial by jury, and it is not within the power of any one or more of the defendants to deprive a eodefendant of that right by refusing to join in the application for the writ of certiorari, of to defeat the right of removal of the case by declining to join in such application. If judgment has been rendered against any of the defendants before the application for certiorari is made, then the case is not pending for trial as against such defendant, and he is not, therefore, required or entitled to join in such application. But a defendant who has not been served with process is not in any such position to be omitted from the further prosecution of the action to judgment in the supreme court. It is the right of the plaintiff to have the pending case removed for trial as he has instituted it; and not to be required to pursue a divided action in different jurisdictions in order to obtain judgment.

The case having heen thus rightfully removed into the supreme court, the action was thenceforth pending therein; and the attachment was properly issued against the defendant Bradford as a nonresident debtor, under §445 of the Code. The ground assigned for quashing the attachment, viz: that the case had not been removed into the supreme court as against the defendant Bradford, and that the case was still pending before the justice as to him, and from which jurisdiction there is no power to issue an attachment to affect real estate, is, as we have shown, an untenable ground for quashing the attachment. The party is a nonresident, and a defendant in the pending action in the supreme court of the District. There is, therefore, no question of jurisdiction involved. All the requirements of § 445 of the Code appear to have been complied with, as the foundation for issuing the attachment. The supposed defect in the bond given upon the issuing of the attachment is clearly without legal foundation. The attachment was issued as against Bradford only, a nonresident, to be levied upon his goods and chattels, lands and tenements, in this District, and not upon the goods and chattels, lands and tenements, of any other defendant in the action. Therefore the bond was properly made to Bradford, the alleged nonresident debtor, and not to the other defendants against whom the attachment did not issue.

Finding no error, the order appealed from must be affirmed; and it is so ordered. Order affirmed.