Seidenbach v. Hollowell

21 F. Cas. 1024, 5 Dill. 382

• Court: U.S. Circuit Court for the District of Eastern Arkansas
• Decided: July 1, 1879
• Status: Published

Opinion

DILLON, Circuit Judge.

The state of Arkansas contains two districts. This suit is not of a local nature. The defendants are both residents of the Western district. They had been partners, and the firm had been dissolved, and the defendant Hollowell had purchased all of the interest of his co-defendant Watt in goods attached. ■ These goods were in the Western district. It is undisputed that Hollowell resided in that district. It is claimed by the plaintiffs that Watt had lost his residence therein. The proof does not establish this. But if this were so, the proof shows that he did not reside in the Eastern district. Under these circumstances, the defendant Hol-lowell must be sued in the district in which he resides. Such is the true construction of section 740 of the Revised Statutes. It is immaterial that the service of the summons was made on both defendants in the Eastern district. It is not necessary to consider the effect of the default of Watt. He was not the owner of the property attached. Hollowell never submitted to the Jurisdiction of the court

The present motion is to discharge the property attached. That motion must be sustained, on the ground that there was no authority of law to send the'writ of attachment into the Western district. State regulations as to where the writ of attachment may run, do not apply. Hollowell alone could move to discharge the.property attached under the writ, and his right to this relief is not weakened by his co-defendant joining in the motion.

Such was the opinion of the district judge, and such is also the opinion of Mr. Justice Miller, to whom the records and the briefs have been submitted, as well as my own. Motion sustained.