Evans v. Yost, 255 F. 726

255 F. 726 | 8th Cir. | 1919

TRIEBER, District Judge

(after stating the facts as above). [1] It is contended that a peremptory writ of mandamus must be served personally, and as the writ in this case was not served on the plaintiff in error in person, but only on a member of his family, as authorized by the order of the court, he need not obey it.

There is no statute of the state of Missouri regulating the service of writs of mandamus, hut section 1759, art. 4, c. 21, Mo. Rev. St. 1909, defines the summons as the original writ where not otherwise provided. Section 1760 of that chapter authorizes service of process:

“Third. By leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years.”

[2, 3] There is no reason why this provision of the statute is not broad enough to authorize service of a writ of mandamus in the manner prescribed. But, even were it otherwise, we are of the opinion that the national courts are not controlled by state statutes, but may prescribe such rules and orders, as may be necessary. Section 918, Rev. St. (Comp. St. § 1544), provides:

“The several Circuit and District Courts may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings.”

Section 262, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 [Comp. St § 1239]), provides:

“The Supreme Court and the District Courts shall have power to issue writs of scire facias. The Supreme Court, the Circuit Courts of Appeals, and tlie District Courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”

In Collin County National Bank v. Hughes, 152 Fed. 414, 81 C. C. A. 556, and on rehearing 155 Fed. 389, 394, 83 C. C. A. 661, this court passed on the question of the issiiance of a writ of scire facias. After a careful review of the authorities it was held under section 716, Rev. St. (now section 262 of the Judicial Code), the national courts are not restricted by the methods prescribed by the state practice, and may order writs of scire facias to revive judgments to be served outside the state. In Hills & Co. v. Hoover, 220 U. S. 329, 336, 31 Sup. Ct. 402, 405 (55 L. Ed. 485, Ann. Cas. 1912C, 562), it was held:

“It follows that where the state statute, or practice, is not adequate to afford the relief which Congress has provided in a given statute, resort must be had to the power of the federal court to adapt its practice and issue its writs and administer its remedies so as to enforce the federal law.”

As the writ in this case was issued, not in an original action, the national courts having no jurisdiction to issue writs of mandamus, except as ancillary to its judgments rendered by it, the writ cannot be distinguished from a writ of scire facias to revive a judgment. In Memphis v. Brown, 97 U. S. 300, 302 (24 L. Ed. 924), it was held that:

“A mandamus to collect a tax for the payment of a judgment, or a mandamus to pay a judgment, is process in execution, and nobody heretofore has ever questioned the power of a court to control its own final process.”

As the court found that, owing to the willful acts of the respondents in the mandamus proceedings, by concealing themselves to evade service of process, the court below, for the purpose of preventing a failure of justice, prescribed for a service which is in effect the same as is authorized by the statutes of Missouri. Equity rule 13 (198 Fed. xxii, 115 C. C. A. xxii) authorizes such'service of subpoenas in equity, even if there is not willful evasion of the service of process. Therefore, even if the state statutes had required a personal service, and none other, it would not be binding on the national courts.

In construing section 918, Rev. St., it has been held that a summons made returnable according to a rule of the federal court, and not in conformity with a changed state statute, is proper. Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602; Boston & Maine R. R. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. Ed. 1002. In Van Doren v. Pennsylvania R. R., 93 Fed. 260, 269, 35 C. C. A. 282, 290, the court, in reply to a contention that the national courts must, under section 914, Rev. St. (the Conformity. Act, Comp. St. § 1537) follow the practice of the state courts in which it is held, said:

“The Circuit Courts are not bound to conform to state practice or pleadings in subordinate details where such conformity would result in gross or substantial injustice to litigants.”

It is not even claimed that he had no notice of the granting, issuance, and service of the writ in conformity with the order of the court. ’ In view of these facts, we are of the opinion that the order of the District Court for the service of the writs was authorized by the laws of the United States, and the service was sufficient.

[4] It is next claimed that the judgment awarding the peremptory writ is absolutely void, as the general law of the state, in force when the bonds, upon which the relator’s judgment was based, hereinbefore quoted from General Statutes of Mo. 1865, limited the tax, which may be levied for railroad purposes in any one year, to 30 per centum of the subscription made by a county, and the writ, which the plaintiff in error was charged to have disobeyed, commanded a greater levy than 30 per cent, of the subscription.

Although there was no express provision in the act, by authority of which the bonds upon which relator’s judgment is based were issued, to levy a special tax for their payment, it has been conclusively determined by the Supreme Court in actions arising under acts of the state of Missouri, containing the identical provision found in this act, that the power to tax is necessarily an ingredient of such power to contract. Ralls County Court v. United States, 105 U. S. 733, 736, 26 L. Ed. 1220; Scotland County Court v. United States, 140 U. S. 41, 45, 11 Sup. Ct. 697, 35 L. Ed. 351. The fourteenth section of the act provided:

“It shall be lawful for the county court of any county in the state to subscribe to the stock of said company, * * * and for the stock subscribed in behalf of the county may issue the bonds of the county to raise the funds to pay for same, and to take proper steps to protect the interests of the county.”

In the cases cited it was held that such a provision carried with it the power to levy a tax to pay bonds issued thereunder.

[5] Assuming that the special act, under which the bonds were issued, is subject to this general act (but see Bunch v. United States, 252 Fed. 673, 679, - C. C. A. -, decided by this court, Sept. 2, 1918) the contention is untenable.

When the first peremptory writ of mandamus was issued in 1912, it only commanded a tax levy to produce $70,500. The county court disobeyed this mandate. Thereupon another petition for a mandamus was filed in 1913, alleging that fact, and asking for a peremptory writ to compel the levy of a tax for the two years, for $70,500 each, or a total of $141,000. This was granted, but again the county court refused to levy any tax, as commanded. When in 1917 the relator filed the third petition for a mandamus, he set out the failure and refusal of the county court to levy the taxes as commanded for the years 1912 and 1913, and prayed for a mandamus, commanding the county court to levy in the aggregate sum of $211,500, to' make up the amounts, which should have been levied and collected in obedience to the writs issued in 1912 and 1913, and to be levied for the year 1917, and the court granted this prayer of the petition.

In East St. Louis v. Amy, 120 U. S. 600, 604, 7 Sup. Ct. 739, 741 (30 L. Ed. 798), the same question was involved, except that no writs of mandamus had been issued therefor, and the court held:

‘"Che law required a tax to be levied annually sufficient to pay all interest as it accrued, and the principal wben due. This was neglected, and consequently there is now a large accumulation of a debt which ought to have been paid in installments. Thus far the inhabitants have been allowed to escape taxation at the times it ought to have been laid, and to which they were under constitutional obligations to submit. The accumulation of the debt was caused by their own neglect as members of the political community which had incurred the obligation. Such being the case, we see no reason why it was not in the power of the court to order a single levy to meet the entire judgment, which was all for past-due obligations. Whether such a tax would be so oppressive as to make it proper not to have it all collected at one time was a question resting in the sound discretion of the court in ordering the collection. There is nothing here to show that there ought to have been a division.”

To the same effect are Hicks v. Cleveland, 106 Fed. 459, 465, 45 C. C. A. 429; Padgett v. Post, 106 Fed. 600, 603, 45 C. C. A. 488.

[6] Again, if the court erred in requiring too large a tax levy, the error*could only be corrected by writ of error, and not. by a collateral attack on the judgment, as is attempted in this proceeding. Bunch v. United States, supra, where the authorities are collected.

The judgment is affirmed.