Claflin v. Steinberg

5 F. Cas. 807, 2 Dill. 324

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1871
• Status: Published

Opinion

DILLON, Circuit Judge.

The federal circuit court for Kansas has adopted the attachment act of the state, and under it the writ of attachment was issued. That act provides that a motion may be made to discharge the attached property, and it is admitted to be the settled practice under it that such a motion may be grounded upon a denial of the truth of the cause stated for the attachment, and may be supported and opposed by affidavits. Accordingly, I have no doubt that the court in term may entertain and hear this motion. Garden City Co. v. Smith [Case No. 5,217],

But may it be heard and decided by one of the judges of the court in vacation? Without going at large into a discussion of the question of power, it is my judgment that I ought to decline to act upon the motion, even if I have the authority to hear it at chambers. The circuit court does not derive its jurisdiction, nor its judges their powers, from the state legislation; and the statute of the state which authorizes a state judge to hear in vacation a motion to discharge attached property, has no application, and can have none, to the federal court or its judges. There is no act of congress giving the federal judges this power, and there has been no rule adopted authorizing such a practice. Whether it would be competent to adopt such a rule I need not inquire. The state court is held by a single judge, who resides near the place where the suit is pending, and, for convenience, the legislature has authorized him to hear in vacation a matter which the same judge would otherwise hear in term. But there are three judges entitled to seats in the federal circuit court, two of them living hundreds of miles distant from the district. If I must hear this motion, as a matter of right so might either of the other judges. Such a practice would be inconvenient and expensive; but the chief objection to it is, that it would deprive the plaintiff of the right to a decision of the question by the court, which sits in the state, and which the law contemplates shall, whenever practicable, be held by two judges, and not by one.

This may be illustrated by the practice established by the United States statutes when there is a difference of opinion between the federal judges. In such an event, the legal questions involved must be certified to the supreme court; for the opinion of neither judge can then prevail. But the practice contended for in this case involves a practical disregard of that plain requirement of the federal statute, and the assumption of authority not intended to be vested in one judge of the court without respect to the opinion of his associate. Motion denied.