Ex Parte Railway Company (103 U.S. 794)/Opinion of the Court

by Morrison Waite

United States Supreme Court

103 U.S. 794

Ex Parte Railway Company

This motion is denied, 1, because it is an attempt to use the writ of mandamus as a writ of error to bring here for review the judgment of the Circuit Court upon a plea to the jurisdiction filed in the suit; and, 2, because if a writ of mandamus could be used for such a purpose the judgment below was clearly right. Under sect. 739 of the Revised Statutes, no civil suit, not local in its nature, can be brought in the Circuit Court of the United States, against an inhabitant of the United States, by original process, in any other State than that of which he is an inhabitant, or in which he is found at the time of serving the writ. It is conceded that the person against whom this suit was brought in the Circuit Court was an inhabitant of the State of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the Circuit Court of the District of Iowa, and unless he could be sued no attachment could issue from that court against his property. An attachment is but an incident to a suit, and unless the suit can be maintained the attachment must fall. The act of June 4, 1880, c. 120, pr oviding the times and places of holding the Circuit Court of the United States in the District of Iowa and for other purposes' (21 Stat. 155), divides that district into four divisions, and requires suits against an inhabitant of the district to be brought in the division in which he resides. The provision of the second section, that, 'where the defendant is not a resident of the district, suit may be brought in any division where property or the defendant is found,' applies only to suits which may be properly brought in the district against a non-resident. Such a suit, if not local, must be in the division where the defendant is found when served with process; if local, in the division where the property, which is the subject-matter or the action, is situated. There is not manifested anywhere in this act an intention of repealing sect. 739, so far as it affects the Iowa district.

Motion denied.

Notes