Patterson v. Mater

26 F. 31 | U.S. Circuit Court for the District of Colorado | 1885

Brewer, J.

I see nothing in the motion for a new trial that calls for hesitation or admits of doubt. The replevin proceedings by Do Walt were unwarranted. Goods in possession of 'a marshal of the United States cannot be taken in replevin by process from a state court. Freeman v. Howe, 24 How. 450.

Where such a proceeding is attempted, an undertaking given for the return of the goods may properly be treated as nothing0 more than a forthcoming bond, — a mere incident to the action in which possession of the goods was taken by the marshal. In such a case the marshal may maintain an action in his own name in the federal court; and this, irrespective of the question of the citizenship of himself and the obligors in the bond. So may any one beneficially interested in the bond. Jurisdiction in these subordinate and ancillary proceedings rests upon the jurisdiction acquired in the original action.

Further, the marshal is a mere nominal party, having no pecuniary interest. The plaintiffs, citizens of a state other than that of the obligors, are alone beneficially interested. As such they may sue in the federal courts, with, and probably without, an assignment. Browne v. Strode, 5 Cranch, 303; Irvine v. Lowry, 14 Pet. 293; McNutt v. Bland, 2 How. 9; Coal Co. v. Blatchford, 11 Wall. 172; Huff v. Hutchinson, 14 How. 586; Walden v. Skinner, 101 U. S. 588.

The motion for a new trial will be overruled.