Vermilya v. Brown

U.S. Circuit Court for the District of Southern New York

Vermilya v. Brown

65 F. 149, 1894 U.S. App. LEXIS 3120

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 26, 1894

StatusPublished

Cited by3 cases

This text of 65 F. 149 (Vermilya v. Brown) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vermilya v. Brown, 65 F. 149, 1894 U.S. App. LEXIS 3120 (circtsdny 1894).

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Opinion

LAGOMBE, Circuit Judge

(after stating the facts). There is a distinction to be made between this case and those heretofore decided in this circuit, and cited on the argument, namely: Good Hope Co. v. Railway B. F. Co., 22 Fed. 635; Golden v. News, 42 Fed. 112; Bentlif v. Finance Corp., 44 Fed. 667; and Clews v. Iron Co., Id. 31. In those cases the service of process in the state court had given that court no jurisdiction, either of the person or of the property of defendant; and under the doctrine laid down in St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, and Pennoyer v. Neff, 95 U. S. 714, the federal courts would have treated any judgment rendered in the state court upon such service as a nullity.. In the case at bar, however, the state court had, even under the theory of the United States supreme court decisions above cited, acquired jurisdiction of the property attached within the state.

When a precisely similar point was presented in McKay v. Central Railroad & Banking Co. of Georgia [no opinion], this court, the writer then sitting, followed the opinion of Judge Colt in Perkins v. Hendryx, 40 Fed. 657, and dismissed the summons and attachment. But attention was not at that time called to Railroad Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444. Although much of that opinion is obiter, it affords a- strong indication of the views of the supreme court upon the questions raised here. In conformity thereto, it should be held that where the state court has, by levy made under attachment and personal service effected before removal, properly acquired jurisdiction of the case, to the extent, at least, of being entitled to enforce [151]*151its judgment against such property, the federal circuit court will not, where the nonresident defendant has voluntarily removed the cause, allow him to dismiss it as to that property, on the sole ground thai this court could not have acquired original jurisdiction of such property by the issue of an attachment. The motion is denied.

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LAGOMBE, Circuit Judge

(after stating the facts). There is a distinction to be made between this case and those heretofore decided in this circuit, and cited on the argument, namely: Good Hope Co. v. Railway B. F. Co., 22 Fed. 635; Golden v. News, 42 Fed. 112; Bentlif v. Finance Corp., 44 Fed. 667; and Clews v. Iron Co., Id. 31. In those cases the service of process in the state court had given that court no jurisdiction, either of the person or of the property of defendant; and under the doctrine laid down in St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, and Pennoyer v. Neff, 95 U. S. 714, the federal courts would have treated any judgment rendered in the state court upon such service as a nullity.. In the case at bar, however, the state court had, even under the theory of the United States supreme court decisions above cited, acquired jurisdiction of the property attached within the state.

When a precisely similar point was presented in McKay v. Central Railroad & Banking Co. of Georgia [no opinion], this court, the writer then sitting, followed the opinion of Judge Colt in Perkins v. Hendryx, 40 Fed. 657, and dismissed the summons and attachment. But attention was not at that time called to Railroad Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. 444. Although much of that opinion is obiter, it affords a- strong indication of the views of the supreme court upon the questions raised here. In conformity thereto, it should be held that where the state court has, by levy made under attachment and personal service effected before removal, properly acquired jurisdiction of the case, to the extent, at least, of being entitled to enforce [151]*151its judgment against such property, the federal circuit court will not, where the nonresident defendant has voluntarily removed the cause, allow him to dismiss it as to that property, on the sole ground thai this court could not have acquired original jurisdiction of such property by the issue of an attachment. The motion is denied.

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65 F. 149, 1894 U.S. App. LEXIS 3120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vermilya-v-brown-circtsdny-1894.

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