Opinion · Supreme Court of the United States
Ex Parte Railway Company
103 U.S. 794
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1881-03-21
- Topic
- general
Mr. Chief Justice Waite delivered the opinion of the court. 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 yin 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.
Citator
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- Cited by
- 44 opinions
Headnotes
- Civil Procedure — Mandamus The writ of mandamus may not be employed as a substitute for a writ of error to bring before the court for review a judgment of the Circuit Court upon a plea to the jurisdiction filed in the underlying suit.
- Civil Procedure — Venue Under section 739 of the Revised Statutes, no civil suit not local in nature may be brought in a Circuit Court of the United States against an inhabitant of the United States by original process in any State other than the State of which he is an inhabitant or the State in which he is found at the time of serving the writ.
- Civil Procedure — Attachment — Suability of Defendant An attachment is merely an incident to a suit; unless the suit itself can be maintained against the defendant, the attachment of his property must fall.
- Civil Procedure — Venue Where a statute divides a judicial district into divisions and requires suits against an inhabitant of the district to be brought in the division in which he resides, a provision permitting suit in any division where the defendant is found when the defendant is not a resident of the district applies only to suits that may properly be brought in the district against a non-resident.
- Civil Procedure — Venue A suit that is not local in nature must be brought in the division in which the defendant is found when served with process, whereas a local suit must be brought in the division in which the property that is the subject matter of the action is situated.
delivered the opinion of the court.
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 yin 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, “providing 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 dis-. trict, suit may be brought in any division where property or the defendant is found,” applies only to suits which may be *797 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 of 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.