38 F. 491 | U.S. Circuit Court for the District of Eastern Michigan | 1889
There is no question that the case was properly dismissed for want of jurisdiction, as the amount in controversy was far less than $2,000. It is but just to counsel to say that the passage of the act increasing the minimum jurisdictional amount from $500 to $2,000 was not generally known to the profession at the time this suit was begun. The court, however, went further, and ordered a return of the property replevied, upon the authority of Mail Co. v. Flanders, 12 Wall. 130. This was a bill in equity against a treasury agent of the United States and an auctioneer, setting forth that the treasury agent
' The difficulty in the present case is that the court, after dismissing the case for want of jurisdiction, proceeded to a step which could only be taken upon'the theory that the court had jurisdiction, viz., the return of the property and the assessment of defendant’s damages. This was done by the court of common pleas in Jordan v. Dennis, 7 Metc. 590, and it was held by the supreme court of Massachusetts that the judgment for the return of the property was erroneous. Such-was also the ruling of the supreme court of this state in Parsell v. Circuit Judge, 39
The cases relied upon by the defendant do not support his contention. In People v. Tripp, 15 Mich. 518, the writ of replevin was not served a sufficient time before the return-day, and the justice declined to proceed, and a discontinuance was entered. This was within the very words of the statute. There was no evidence that the court did not originally have jurisdiction of the case. In Forbes v. Judge, 23 Mich. 497, the service of the writ was set aside as having been made after the return-day. This ivas held, in effect, to amount to a discontinuance; but there was no evidence in that case that the court did not have jurisdiction to issue the writ. In Fleet v. Lockwood, 17 Conn. 233, the writ was abated for want of a bond for prosecution, and a judgment that the plaintiff return the goods and chattels replevied was held to be correct, but no question was made concerning the jurisdiction.
We are clear in the opinion that there was no power in the court to order a return of the property after it had been delivered to the plaintiff, or to assess the plaintiff’s damages, or to pass upon the question of title as between the parties. As it seems to be conceded that no action will lie upon the bond, (section 8352,) except after an execution returned unsatisfied, it follows that the defendant must seek his remedy by an action against the officer, or against the plaintiff in replevin.
An order will be made vacating the judgment for return and the order assessing damages, as having been improvidently made, and the case will be dismissed for want of jurisdiction.