Yazoo Company v. City of Clarksdale

United States Supreme Court

257 U.S. 10

Yazoo Company  v.  City of Clarksdale

No. 15  Argued: Oct. 6, 1921. --- Decided: Nov 7, 1921

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY et al. v. CITY OF CLARKSDALE.

ERROR AND CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI.

1. A judgment of a state court denying the validity of a title claimed under an execution sale based upon a federal court judgment, because of supposed irregularities in the marshal's attempted exercise of his authority to sell, the authority itself not having been drawn in question, is reviewable by certiorari and not by writ of error, under Jud. Code, § 237, as amended. P. 15.

2. The application of state laws to a marshal's sale of property under a common-law execution issued on praecipe from a federal court, is governed by the conformity provisions of Rev. Stats., §§ 914, 916. P. 18.

3. The provisions of the Act of March 3, 1893, c. 225, 27 Stat. 751, relative to the place of sale, apply only to judicial sales made under order or decree and requiring confirmation by the court for their validity. P. 18.

4. An assignment of error help sufficient to submit to the court below the question whether a marshal's sale was valid under Rev. Stats., § 916. P. 19.

5. Under Rev. Stats., § 916, giving to the party who has recovered judgment in a federal court "similar remedies *** by execution *** as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of any such circuit or district court," the state law applicable is that which was in force when the act of which § 916 was a part was originally enacted, viz, June 1, 1872, in the absence of general rules adopting later state law. P. 19.

6. Under § 849 of the Mississippi Code of 1871, which, prior to amendment by § 3467 of the Code of 1892, provided that shares or interests in any corporation, as well as banknotes or evidences of debt circulating as money, might be taken and sold under an execution in the same manner as goods and chattels, or applied to the payment of the execution, and required the custodian of the corporate books to give the levying officer a certificate of the number of shares or amount of interest held by the defendant in the company, and declared that the purchaser of such shares or interest at the execution sale should become the owner thereof in the same manner as if such shares or interest had been regularly assigned to him by the defendant,—a certificate of shares issued to a judgment debtor and found in the custody of his agent or trustee was a proper subject of levy and sale. P. 20.

7. Under the laws of Mississippi, a venditioni exponas is not necessary to enable the officer to proceed with the sale of property taken under a fieri facias of which the return day has not gone by; and, where the return on the latter writ shows due levy and sale, references therein to a venditioni exponas may be treated as surplusage. P. 22.

8. Under Rev. Stats., § 914, which requires that proceedings in common-law cases in the federal courts shall conform to those of state courts "as near as may be," and § 916, which gives the judgment creditor remedies on common-law executions "similar" to those of the state court, an execution sale of personal property which under the state law (Miss. Code, 1871) must be made at the court house of the county may be made at the court house of the United States where the judgment was entered and execution issued. P. 22, Smith v. Cockrill, 6 Wall. 756, and Amy v. Watertown, 130 U. S. 301, distinguished.

81 So. 178, reversed.

 

Certiorari to review a judgment of the Supreme Court of Mississippi rendered in favor of the City of Clarksdale in a suit brought by the city to assert its ownership in shares of stock in a railway company. The facts are stated in the opinion.

 

Mr. H. D. Minor, with whom Mr. Charles N. Burch and Mr. Blewett Lee were on the briefs, for plaintiffs in error and petitioners.

 

Mr. Gerald Fitzgerald, with whom Mr. Geo. F. Maynard and Mr. W. W. Venable were on the briefs, for defendant in error and respondent.

The writ of error should be dismissed. Jud. Code, § 237, as amended. The federal question presented was not of sufficient importance to warrant certiorari.

The Act of 1893, 27 Stat. 751, has no application to a sale of property under execution in common-law cases. Under §§ 914, 916, Rev. Stats., the only way to enforce one's judgment in the federal court is to proceed according to state practice. Chamberlain v. Mensing, 47 Fed. 435; Ex parte Boyd, 105 U. S. 647; Perez v. Fernandez, 202 U. S. 80; Amy v. Watertown, 130 U. S. 301. Section 914 contains the significant words not contained in the former acts,—"any rule of court to the contrary notwithstanding." See Ward v. Chamberlain, 2 Black, 430. The state rules can be varied only where necessary to enable federal officers to function under them.

The rule of court need not be in writing, but may exist in the general practice of the court. Wayman v. Southard, 10 Wheat. 1 ; Logan v. Goodwin, 104 Fed. 409; Citizens Bank v. Farwell, 56 Fed. 570.

The form of the marshal's return shows that he was acting under the Mississippi Code of 1892, and is convincing evidence that it was the custom of the court to use the statute in force at the time the officer acted.

The decisions of the state courts construing their own statutes are binding upon the federal court even though it might be said that such state statutes when adopted by the federal courts become pro hoc federal statutes.

The writs and levy and sale thereunder are all void and of no effect and subject to collateral attack.

At common law, stock in a corporation could not be levied upon, and it is only by statutory authority that this can now be done; the statute must be literally and strictly followed. 17 Cyc 944, 945; Cook, Corporations, vol. 2, 6th ed., § 480; Jellenik v. Huron Copper Mining Co., 177 U. S. 1 ; Miss. Code, 1892, § 3467.

There is a sharp difference between the real interests of a person in a corporation and the stock certificate or indicium of ownership of the share or interest. Section 3467, Code 1892, especially draws this distinction, and does not provide for the sale of the stock certificate. The distinction is plainly drawn in the Jellenik Case, supra. See Simpson v. Jersey City Contracting Co., 165 N.Y. 193.

The Code of 1871, § 849, also makes this distinction, for it requires that demand be made upon the company, in which the debtor is supposed to own a share or interest, for the amount and value of said share or interest belonging to the debtor, which provision precludes the idea that the stock certificate itself could be sold as such.

A sale made by the marshal of the United States of personal property or real estate in front of the federal court building is void. Koch v. Bridges, 45 Miss. 247; Jones v. Rogers, 85 Miss. 802 ; Moody's Heirs v. Moeller, 72 Tex. 635; Sinclair v. Stanley, 64 Tex. 72; Smith v. Cockrill, 6 Wall. 756; Bornemann v. Norris, 47 Fed. 438.

Where a sale is void and not merely voidable, it may be attacked in collateral proceedings. 17 Cyc. 1286; Harper v. Hill, 35 Miss. 63; Koch v. Bridges, supra; Jones v. Rogers, supra; Smith v. Cockrill, supra; 2 Freeman on Execution, 3d ed., § 289.

 

Mr. Chief Justice Taft delivered the opinion of the court.