Kerrison v. Stewart

14 F. Cas. 411

• Court: U.S. Circuit Court for the District of South Carolina
• Decided: December 15, 1874
• Status: Published

Opinion

BOND, Circuit Judge.

In the year - [18C8], A. T. Stewart & Co. recovered a judgment in the district court for the Western district of South Carolina, which court by law is clothed with circuit court powers within that district, against Kerrison & Leiding, now in bankruptcy. Kerrison & Leiding, before the rendition of said judgment, had made a deed of assignment, for the benefit of certain creditors, which deed Stewart & Co. successfully assailed in the courts of the state as fraudulent [3 Rich. (N. S.) 2CG], and the judgment in that case, in which the trustees were parties defendant, bound the cestuis que trustent also. Kerrison & Leiding then applied for the benefit of the bankrupt act, and were adjudicated bankrupts subsequently to the date of the judgment recovered in the district court of the United States. Stewart & Co. claim to have a lien, by virtue of their judgment, upon the lands of said bankrupt which came into the hands of the assignee.' This claim is contested because it is alleged that the record of the said judgment is irregular and imperfect, first because the writ was tested in the name of the chief justice of the United States, though the writ was in a district court, and was made returnable before the clerk of the circuit court of the United States at Charleston, which is not within said district, who was likewise the clerk of said district court, instead of being returned to rules in the district court. There are other irregularities set forth in the statement of facts, which it is not necessary to notice, because notwithstanding them all the defendants in this action appeared, pleaded, and went to trial before a jury of the district court of the Western district, without plea to the jurisdiction, and without any complaint or notice of the irregularities in question, or any of them. Under these circumstances, it must be considered that all errors in pleadings and all irregularities in the filings of the pleas or declarations, and of returns to the process, were waived, and if this were not so, there is no remedy for the defendants except by appeal or writ of error to set the judgment aside, or to reverse it. It cannot be inquired into in this collateral way.

I am of opinion that the judgment of Stewart v. Kerrison [Case No. 13,431] is a valid and subsisting one, and that they are entitled to be paid out of the proceeds of such of the real estate of the bankrupts as it was a lien upon, according to its priority. While the court refuses to set aside this judgment on account of the irregularities complained of, it cannot refrain from saying, for the benefit of the profession, that in its judgment a plea to the jurisdiction of the district court at Greenville would have been well taken. That court is not a circuit court. Neither the chief justice of the United States nor the circuit judge, who are required by law to hold circuit courts, can hold or assist in holding the district court for the Western district of South Carolina. That court, held by the district judge, has circuit court powers within the territory prescribed by law for its jurisdiction, which any person legally entitled may invoke at pleasure; but there is no authority at all for removing causes originally brought in the circuit court of the United States to that court, against the consent of parties, except in certain criminal cases at the instance of the district attorney. I am aware that the practice to do so prevailed for some time, but it has produced great confusion, and has no warrant in law.