Adler v. Cole , 12 Wis. 188 ( 1860 )

By the Court,

Dixon, C. J.

The main question in this case, is whether the United States district court for the district of Wisconsin has the power by rule to adopt, and, in the cases provided by law within this state, to issue, in common law actions commenced or pending in that court, process of attachment against the property of debtors, as a provisional remedy, according to the form and mode of proceeding prescribed by the Code of Procedure. After its enactment, that court, by a general rule, adopted its provisions on that subject, and ordered that attachments might be allowed by the judge or a commissioner, upon the terms required by law, a clause of attachment being inserted in the summons: or in case of an attachment allowed after the service of the summons, that the summons might be omitted, or an alias issued; and that the law of the state in force at the time, and its remedies on the subject, should be observed in substance. As the other questions involved in the case spring from this, wé shall not discuss them. Bike all other questions touching the powers of the federal courts, no question under the . constitution of the United States being made, it depends upon the construction to be given to the several acts of congress in relation thereto. The power of congress to confer the jurisdiction sought to be impeached is not denied, and the only question is, has congress done so ? Questions of this nature are not of frequent occurrence in this court, and as we have been referred to no adjudications of the supreme court of the United States, which in our opinion reach the point in controversy; and as we are not, we regret to say, sufficiently familiar with the decisions of the learned judge of the district court, if indeed he has had occasion to pass directly upon the question, to know upon what laws of congress he rests the power, we are compelled to a great extent to determine it upon our own construction of those laws. If by the decision of the supreme court of the United States, a construction had been given to any of the acts of congress, by which it was held that the power exists in the district court, we should feel bound by such decision, and be relieved from any examination of the subject. There being, to our knowledge, no such construction by that court, we must interpret for ourselves.

If, in our opinion, the exercise of this power by the district court depended solely upon that clause of the 4th section of the “ act to enable the people of Wisconsin territory to form a constitution and state government, and for the admission of such state into the Union,” approved August 6th, 1846, (9 U. S. Stat. at Large, 56,) which declares that the judge of the district court “ shall, in all things, have and exercise the same jmisdiction and powers which were by law given to the judge of the Kentucky district, under an act entitled ‘ an act to establish the judicial courts of the United States,’ ” and which alone, in connection with the judiciary and process act, was cited and relied upon by the counsel for the appellants, we confess we might find some difficulty in upholding it. Nevertheless we are not prepared to say that it might not in that view be sustained; nor that it would be an unwarranted construction of the 14th section of the judiciary act, to hold that the courts organized under it, might without the restrictions imposed by the process acts, from time to time modify or change the remedy by attachment, agreeably to the principles and usages of the laws of the states within which they are held, at the time such modifications or changes were made. The reasoning of the supreme court in Wyman vs. Southard, 10 Wheat., 1, and U S. Bank vs. Halstead, id., 51, as we may hereafter have occasion to notice, tends strongly to support this conclusion, though the question was not directly before it.

The process acts cited and relied upon, are the temporary law of September 29, 1789, which was pending before congress at the time of the passage of the judiciary act, and the act of May 8,1792 (IT. S. Stat. at Large, 275), by the 2d section of which the temporary law, with certain modifications and reservations of power on the part of the courts, was continued and made permanent. We were also referred to the act of May 19, 1828 (4 IJ. S. Stat. at Large, 278), and that of August 1, 1842 (5 U. S. Stat. at Large, 499), by the former of which the provisions of the prior acts in relation to process, were extended to those states which had been admitted since the 19th of May, 1828. These latter acts, however, except so far as they evince a clear intention on the part of congress to continue in force throughout all the states of the Union, the provisions of the original process act, as made permanent, thus making the form of write, executions and other process, except their style, and the forms and modes of proceedings in suits at common law, to correspond with those in use in the several states, seem to have no particular bearing upon the question we are considering. The second section of the act of 1789 enacts, “that until further provision shall be made, and except where-by this act, or other statutes of the United States, it is otherwise provided, the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same.”

The act of 1792, continuing and malting permanent that of 1789, provided, that “ the forms of writs, executions and other process, and the forms and modes of proceeding in suits in .those of common law,” should be the same as then used in the said courts respectively, in pursuance of that act, “ except so far as may have been provided for by an act to establish the judicial courts of the United States, subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient, or to such regulations as the supreme court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same."

Viewing the question in the light in which the argument of the counsel for the appellants placed it, namely, that the jurisdiction and powers of the district court of Wisconsin are derived solely from that clause of the 4th section of the act to enable the people of the territory of Wisconsin to form a constitution and state government, which we have above quoted, it seems very evident that all the above mentioned acts concerning the forms of writs and process, and the forms and modes of proceeding in the federal courts, are entirely out of the case. They were all enacted after the passage of the judiciary act, by virtue of which the district court of Kentucky was organized. In it no reference was or could have been made to them. The language is plain and unambiguous, and limits the powers and jurisdiction conferred to such as were given to the district court of Kentucky by the judiciary act. Argument is useless to ¡erove that authority given to the district court of Kentucky by other and subsequent acts of congress, is not by this language conferred upon the district court of Wisconsin. Such a construction cannot be maintained. Hence the authorities cited, which establish that the circuit court and other district courts of the United States, have the power, by rule, to adopt the forms of process in use in the several states in which they have jurisdiction, are inapplicable in this view of the matter, for the reason that they are all based upon the provisions of the 2d section of the act of 1792, which subjects them to “such alterations and additions as the said courts respectively shall, in their discretion, deem expedient.” We are, therefore, to look to the judiciary act to ascertain what powers are conferred by it upon the several courts thereby established.

By the 10th section, the district court in Kentucky, beside the jurisdiction thereby given to the district courts, was declared to have jurisdiction of all other causes, except of appeals and writs of error, thereinafter made cognizable in a circuit court. The 14th section enacts, “ that all the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” These are all the provisions of that act bearing upon the question as viewed by counsel. We were referred to the last clause of the 17th section, which declares that “ said courts shall have power to make and establish all necessary rules for the orderly conducting of business in the said courts, provided such rules are not repugnant to the laws of the United States;” but as the supreme court has decided (Wyman vs. Southard, supra) that this section is confined to business actually transacted in court, and does not contemplate proceedings out of it, it has no application here. As we are not, however, compelled to decide the question upon the theory of counsel, and since we are clearly of opinion that there is another clause in the 4th section of the act of 1846, which does confer upon the district court this power, it becomes unnecessary for us to say whether, in our opinion, it would, or would not have it under the 14th section. There is much reason for saying, that by a fair construction of its language, and by the effect which has been given to it by the decisions of the supreme court, it does give the power. -It is to be observed, that it is this section which gives to the federal courts their power to issue process. The process acts prescribe the forms of processes, but confer no power to issue them. They are merely limitations upon the power here given. They restrict it, by prescribing in what manner it shall be exercised. Without them, the courts would be at liberty to select among all the forms of process, which are agreeable to the principles and usages of the law, such as best suited their taste or convenience, without regard to such as were in use in the states in which they respectively had jurisdiction. It was to restrain this otherwise unlimited choice in the forms and modes of proceeding which prevailed in the various states, and in which they all differed more or less, that these acts were passed. Such is the interpretation of the supreme court in the cases above cited. If this be so, it would follow that the district court of Wisconsin, without some other provision bringing it within the restrictions, would possess more enlarged powers upon the subject of process, than the district and circuit courts of an earlier date, to which the restrictions do apply. It could issue processes agreeably to the principles and usages of the law in any of the states, whilst they are confined, without some special rule, to such as are used in the states in which they preside. Nor would it be confined to such writs as were used at the time of the passage of the act; for the law, being permanent in its nature, and intended to operate for all future time, or until it should be modified or repealed, would be held to apply to such principles and usages of law as are known at the time of their issue, and would not be limited to such as were known at the time of its enactment. It has no such words of limitation as the original process act. Therefore, the argument of the respondent’s counsel, drawn from the word “now,” as used in that act, is inapplicable.

It was urged that the writ of attachment could not be issued under this section, because it was not “ necessary ” to the exercise of the jurisdiction of the court; that all its powers could be exercised without it. It is true, that for the purpose of obtaining jurisdiction of the person, and enabling the court to pronounce a valid judgment, it may be dispensed with; but in many cases, for the purpose of accomplishing justice, which is the end sought by litigation, it becomes absolutely necessary. It was undoubtedly the intention of congress to place in the hands of the courts those means which are usually resorted to for the purpose of attaining the objects for which their powers are invoked; and to hold to this narrow construction, would be to defeat this intent. It is a process of peculiar importance, and in many cases so indispensably necessary, that the judicial power cannot be beneficially exercised without it. Giving to the word “necessary,” as here used, the meaning which commonly attaches to it when employed to confer power, it must be held to give authority to issue the writ. Under our system of jurisprudence, such a remedy, though not perhaps strictly indispensable, is certainly needful and conducive to a proper discharge of the duties of a court of general and original jurisdiction.

It was also urged, that the proceeding by attachment was not then known to the law, and that the qualifications of the power under the terms “agreeable to the principles and usages of the law,” limited it to such writs as were sanctioned by the principles and usages of the common law. Although the writ of attachment may not be said to be a common law writ, yet it is a very great mistake to suppose that it was not known to the law, at the time of the passage . of the act. On the contrary, a very slight investigation will satisfy any one, that it is a proceeding of very great antiquity, its origin being ascribed by some to the Eoman law; and that it was not only well known and in general use in the several states at the time of the adoption of our federal constitution, but that it was in like manner known and used by our colonial ancestors long prior to the revolution. Drake on Attachment, chap. 1. This is proved, in part, by the act itself, in the 12th section of which the proceeding is mentioned. To the argument, that the power is confined to such writs as were sanctioned by the common law, it is a sufficient answer to say that the supreme court have decided differently, and held that it was intended to authorize writs sanctioned by the principles and usages of the state laws. U. S. Bank vs. Halstead, supra, page 56. But this discussion may perhaps be considered not pertinent, as we have decided the case upon another ground, which we will proceed to state.

By the 1st clause of the 4th section of the act of 1846, to enable the people of Wisconsin Territory to form a constitution, &c., it is enacted: “That from and after the admission of the State of Wisconsin -into the Union, in pursuance of tbis act, tbe laws of tibe United. States which, are not locally inapplicable, shall have the same force and effect within the state of Wisconsin, as elsewhere within the United States.” This language- is too plain for comment. The act of 1792 is not locally inapplicable to this state, and hence by this clause its provisions are extended to the district court. It is a general law, applicable alike to all parts of, and to all the courts in, the Union. By virtue of its being thus extended over this state, the district court had the power, by rule, to adopt the process in question. Otherwise we do not see how any of the vast body of laws, concerning the practice and modes of proceeding in the federal courts, which have been enacted since the passage of the judiciary act, and which constitute the principal part of congressional legislation upon that subject, are to be considered applicable to the district court. They clearly would not be. Such construction would only be consistent with an intention on the part of congress not to make them so, but to leave that court with only such meagre regulations as are made by the judiciary act, or were in force at the time of its passage, which no one can for a moment believe. On the contrary, an opposite intention could hardly have been more plainly evinced. This clause was used to give effect, in Wisconsin, to all laws of a general nature; the other, to declare to what controversies or actions the jurisdiction of the court should extend.

It follows from these views that the judgment of the circuit court must be reversed, and a new trial awarded.

Mabch 12th, 1861.

A motion for a rehearing having been made in this case, we have carefully reviewed the grounds of the foregoing opinion, and still believe them to be correct. The motion must therefore be overruled. Upon the admissibility, under the averments of their answer, of evidence on the part of the appellants going to show fraud or bad faith in the transfer of the property by Adler & Skiff to the respondent, a question upon which it is said we ought to have passed but did not, we say that we think the answer lays a sufficient foundation for it, and that on that account it ought not to be excluded. Tbe answer alleges tbat tbe goods and chattels were, at tbe time of their seizure by virtue of tbe writ of attachment, tbe property and effects of Adler & Shiff tbe defendants therein named, and liable to attachment and execution by their creditors. This is a sufficient averment of title or property in Adler & Shiff to enable the appellants to establish it by any means in their power; and within the doctrines of this court in Gillett vs. Robbins, decided July 30th, 1860, a more particular statement of facts as to how they became the owners originally, or how they continued to be the owners, their title and property having once been admitted or established, was unnecessary. Such detailed statements of title, or facts going to show it, would often be very inconvenient and difficult, and sometimes wholly impracticable or impossible.

Judgment reversed, and a new trial awarded.