15 Colo. 270 | Colo. | 1890
Lead Opinion
Among the many errors urged on behalf of the appellant, that which is most extensively argued is
In view of the constant and repeated assaults upon the principle involved in these decisions, and of the later adjudications of the supreme court of the United States, particularly that of Covell v. Heyman, 111 U. S. 176, it has been deemed best to further elucidate and explain this court’s position on the question. This is ample justification for the labor and space essential to what may be taken as an end of the controversy, until the highest tribunal of the nation shall declare its opinion on the very matter in dispute. The language used by that very distinguished court in the case last referred to, as in all the cases following Freeman v. Howe, in 24 How. 450, affords some apparent warrant for the contention of appellant’s counsel. When properly understood and explained, however, none of the federal authorities, nor any of the arguments urged against this court’s position, compel any modification of the doctrine already announced. It is one of the fundamentals of the law, that, to entertain and decide a controversy between parties, it is essential that the court which tries the case pha.ll have jurisdiction of both the subject-matter and of parties. The postulate that wherever there is a want of jurisdiction, either as to the person or as to the subject-matter, the judgment which it may render is indefensible, is without exception. It has thus become common to assert that, wherever a.matter can be termed “ jurisdictional,” it is beyond the power of the court to increase or diminish its powers at pleasure concerning that matter.
With regard to the subject-matter of this replevin suit, the action of the federal court concerning it cannot be said, except in a special and very restricted sense, to be jurisdictional. To permit the res to be seized on the process of
This demonstrates the inaccuracy of the application of the word “ jurisdiction ” as a designation of the primary and fundamental difficulty. It is only the limited possessory element of jurisdiction which is either concerned or involved. The general trouble has arisen from the insurmountable obstacle to absolutely accurate and perfect judicial declaration. Unless the precise question be raised by the record, it is most liable to lie hidden beyond the range of mental vision, and be discoverable only as the sland is when the ship has sailed far enough in its direction. The exact question herein has never been presented to the supreme court of the United States, nor has it ever had occa
The whole question is one of the avoidance of a conflict in the exercise of the powers of two courts acting under authority conferred by different sovereignties, but exercised within the same general territorial limits. This is plain to be seen when the subject is considered both with reference to the purposes for which the authority is claimed, and the absence of right on the part of the parties really interested to assert that the control of the federal court is exclusive. The object is not to preserve the property or its fruits to answer the judgment, for neither can ultimately be devoted to any such purpose, if the process has been laid upon property to which the defendant in the process had no title. This is apparent because the officer may be sued in a state court in trespass for the unlawful taking, or he and his bondsmen may in like manner be sued upon his official bond and made to respond for the unlawful conversion. This is abundantly settled by the same high court, which declares that property taken under its process may not be interfered with so long as it is within the scope and power of the writ. Lammon v. Feusier, 111 U. S. 17; Buck v. Colbath, 3 Wall. 334.
The real owner is not precluded from asserting Ms title as against the marshal in a tribunal of his own selection. It is only that the goods are temporarily and incidentally in the custody of the court, and a stranger may not lay hold of them. Hnder these circumstances it is not easy to see why the federal court may not by order permit the res, the specific thing, to be pursued. The privilege does not at all belong to the officer, neither is it his right. He could
The plaintiff in the action in which process issued is equally without right to demand that the replevin suit be heard in the federal tribunal. He is without any choice in the premises as to the forum in which that controversy shall be settled. The original suit does not enter into the solution of that problem. The jurisdiction of the court over the original subject-matter and controversy is neither assumed nor cast off at its pleasure. It always remains when justly invoked and set into active operation. To say that it may by order release property which has been seized under its process either to answer a judgment which may or may not be recovered, or to satisfy one already rendered, when the particular property is alleged not to be answerable to the judgment, and permit that question'to be litigated in a court otherwise of competent jurisdiction, is not to assume a power in the court to refuse or assert a jurisdiction over the subject-matter of a controversy represented by citizens who have ■ a right to be heard in that forum. The officer is without personal right to he heard, for he may elsewhere be made to answer for his illegal taking.
The plea of levy under the process of the federal court is then neither a personal plea nor one incidental to the office of marshal, but the setting up of a fact, to wit, the antecedent acquisition of possession of the property by another court foreign to the tribunal in which the later action has been instituted. It is the fact of possession solely, which, if at all, permits the jurisdiction to be said to attach. It does not spring from the existence of the main suit, nor grow out of the personnel of the officer, but the circumstance that the officer of a particular court under its process has seized the goods by construction brings them within the jurisdiction of that tribunal; and the possession, save by the exercise of a wise and well-directed comity, may not be disturbed. The ultimate judgment in the action wherein the mesne process was issued, and the sale of the property seized under final execution, in no manner affects the question of title to the property. The res, the specific thing, may be lost or transferred, but the owner may still recover of the officer for the taking, and neither the seizure and sale nor the judgment of that court is of any moment in determining the matter of the ownership.
When then it is asserted that the question is one of jurisdiction it is only true in a limited and special sense. The property is in the hands of the court, and consequently is accurately said to have passed within its jurisdiction. The question of title to the property seized is neither involved in the principal suit nor at all affected by the fact of seizure. A particular remedy for the establishment of that title is unavailable, because it invades the court’s possession. All the court surrenders, when it enters an order permitting suit to be instituted against its officer, is that possession and the right to it. It neither assumes jurisdiction of the subject-matter of any suit, nor does it reject jurisdiction of any controversy which has been initiated in
The supreme court has undoubtedly declared the law to be that the stranger whose property has been seized may, in their court, assert and defend his title as against the process. Mo other position would be consistent either with the rights of citizens or the exercise of a proper authority by the court. The position and rule laid down by the supreme court of the United States are not at all in conflict with the principles which this court has declared. Both rules may well be permitted to stand, and the comity and harmony which has always prevailed, and been asserted by both tribunals, will be the better conserved and protected. The court did not err in overruling the demurrer to the replication.
"Were it necessary, the court would be inclined to hold that there was no sustaining of a challenge for cause upon which error could be based; but it is evident that the juror was so circumstanced in his situation and in his relations that the court properly exercised the discretion reposed in it -when it excused him from the panel. He was in the employ of a firm, apparently on the. most excellent terms and intimate relations with one of the parties in interest. The firm became their bondsmen upon the instrument which secured them in the possession of the property in the original controversy. It is apparent that one side of the case at least might easily have been the subject of enlarged dis
There is but one other error which need be considered, and this grows out of the overruling of a motion for a new trial, based upon an affidavit substantially setting forth that, during the trial, one of the jurors in the panel was accused of a grave crime, and that he employed one of the counsel for the other side to defend him against the charge. There was nothing in the proof offered upon this matter which tended to show that the juror was thereby rendered incompetent, or that he failed to give due and proper attention to the testimony as it was adduced, and to the arguments of counsel. Even under great strain and pressure of misfortune, or other circumstances, the mental operations may, for collateral purposes, be as clear and precise,
There are no other errors assigned which need consideration. The judgment should.be affirmed.
Richmond and Reed, 00., concur.
Bor the reasons stated in the foregoing opinion the judgment of the court below is affirmed.
Affirmed.
Dissenting Opinion
(dissenting). I cannot concur in the foregoing opinion, for the reasons stated in my dissenting opinion in the case of Mitchell v. Smith, 13 Colo. 172.