Grosch v. Central Vannina, Inc.

HamultoN, Judge, delivered tbe following opinion: After tbé decision bere bolding that a defendant in tbis and in another court bad no right to raise tbe question of conflict of jurisdiction, tbe Porto Rico district court proceeded to tbe appointment of receivers, and they now apply to tbis court to have tbe property of tbe Central Vannina turned over to them for administration under tbe orders of tbe local court. Tbis is tbe mode of procedure which was followed in tbe case of McKinney v. Landon, 126 C. C. A. 226, 209 Fed. 300. Tbe application requires tbe decision of tbe question as to which court first obtained jurisdictipn. Tbe matter is now submitted upon tbe pleadings and affidavits both of tbis and tbe preceding application. 1. There is no question involved of tbe relative dignity of — 59 — ■the courts. There should never be such a question except where appeals lie, as each court within its jurisdiction is the equal of every other court. The question to be decided has nothing to do with the relative grade of the local and the Federal courts. For the purposes of-this proceeding they stand on an absolute equality, and in this jurisdiction their relations are not only of comity, but of cordiality. The only question is as to which obtained prior jurisdiction. Riggs v. Johnson County, 6 Wall. 166, 195, 18 L. ed. 768, 776; Wabash R. Co. v. Adelbert College, 208 U. S. 54, 52 L. ed. 386, 28 Sup. Ct. Rep. 182. The decision of the question of jurisdiction is in any event to be made according to the principles of American law. The Federal court, of course, proceeds according to American practice, and the Porto Rican courts are governed by a Code of Civil Procedure which is taken from that of California and •other western states. 2. Such a question as between courts is generally spoken ■of as comity between courts. This, however, does not mean mere courtesy; for a proceeding in a court is one to enforce rights, and, as observed in Baltimore & O. R. Co. v. Wabash R. Co. 57 C. C. A. 322, 119 Fed. 680, where there is a •concurrent jurisdiction, it is a matter of right in a plaintiff to •choose his forum. This is a privilege which cannot be denied him. However a court might prefer that a question do not arise, it cannot neglect its duty to decide the question when it does arise. And this being so, it is not material whether other •creditors, or the majority of them, might prefer some other forum. This is not a case where creditors control the appointment of receivers as is the case with the trustee in bankruptcy. — 60 — The court appoints the receivers it thinks will properly admin* ister the trust, but, of course, the court will always listen to proper applications as to the conduct of its receivers, and see that the trust is administered in a businesslike manner. 3. It is settled that the court first acquiring jurisdiction will1 retain it. In such case all other courts, although their jurisdiction otherwise might be perfect, are excluded from the consideration of this particular matter. Wabash C. Co. v. Adelbert College, 208 U. S. 38, 52 L. ed. 379, 28 Sup. Ct. Rep. 182; Baltimore & O. R. Co. v. Wabash R. Co. 57 C. C. A. 322, 119 Fed. 678; Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119; Covell v. Heyman, 111 U. S. 176, 28 L. ed. 390, 4 Sup. Ct. Rep. 355; Ball v. Tompkins, 41 Fed. 486; Onslow County v. Tollman, 76 C. C. A. 317, 145 Fed. 753; Mound City Co. v. Castleman, 110 C. C. A. 55, 187 Fed. 921. This rule is clear, but it is not quite so clear as to what time and in what manner jurisdiction is first acquired by the court. Cooper v. Beynolds, 10 Wall. 316, 19 L. ed. 932. There is no question that the jurisdiction between the two parties is complete when the proper pleading is filed and the proper process, has been served upon the defendant. Sometimes, under the doctrine of lis pendens, it is held that the issue of process is the commencement of a suit, or even in some cases the filing of' the bill. Pacific Coast S. S. Co. v. Bancroft-Whitney Co. 36. C. 0. A. 135, 94 Bed. 180. In the case at bar the decision is made difficult by the fact that the steps in the two cases run almost parallel, and were-different in time only minutes or hours, being all on the same day. The petition was first filed and first served in the local' court, while, on the other hand, the bill may have been filed — 61 — in the Federal court before service in the local court, and certainly was before appearance made in the local court. The Federal court first took judicial action as distinguished from the administrative action of its clerk, by appointing receivers, possibly before service in the local court, and those receivers went into possession about the time or shortly after the local ■court was fixing a later day on which to appoint its own receivers. Which court, under these conflicting steps, first acquired jurisdiction? 4. The question of jurisdiction is a relative one. It differs in suits in personam and in rem, and in some respects it varies .as to parties. The question now under consideration, however, has no reference to parties; it is as between two courts. If the jurisdiction as to parties depends upon filing and the like, which parties control, it would seem as if on principle the question as between courts should depend upon the acts of the courts. It is true the court is an entity, consisting of judge, clerk, and marshal, but these officers have different functions. The decision of a case — the literal meaning of jurisdiction — • rests solely with the judge, and it would seem that jurisdiction must depend upon his act, and not upon that of the clerk. See Lansing v. Easton, 7 Paige,, 364. If jurisdiction as between •courts attaches to the court making the first order, in the case at bar this would be the Federal court. This court, at about ten minutes after 12, noon, made an order taking jurisdiction of the case and appointing receivers. The insular court made no order of this nature until later in the day, and in fact did not appoint receivers for a week. East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L.R.A. 109, 49 Fed. 608, 610. It may well be that the act of the clerk, for instance in — 62 — filing tbe papers, is considered tbe act of tbe court, and tbat tbe order made by tbe court assuming jurisdiction relates back to tbis, tbe initial step in tbe case. Tbis may be necessary for tbe orderly conduct of tbe business of tbe court. But, nevertheless, it would seem tbat relation back should not apply where conflicting rights have intervened. Where time is of the essence of tbe transaction, in tbis case taking jurisdiction, a subsequent order of one court should not relate back so as to take precedence of a prior conflicting order of another court. It is, however, not necessary to rest tbe decision of tbe case upon tbis view of tbe principle involved. 5. Upon authority tbe solution is not so simple. In tbe usual case of a suit between two parties, one in personam, tbe filing of tbe complaint or petition generally gives jurisdiction of tbe subject-matter, and service of the defendant gives jurisdiction of tbe person, both being necessary. But there is a class of cases called in rem, against the thing or res rather than against tbe owner, where a different rule prevails. There service of tbe person is not practised, or is an incident to afford tbe owner an opportunity to come in, without being necessary for jurisdiction to attach. There are other ' proceedings where tbe res is proceeded against, but is affected only as between tbe persons made parties. These suits are quasi in rem, and tbe in rem quality varies with tbe various nature of tbe particular suits. A proceeding may be in rem for some purpose and in personam for others. Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565; Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931. To tbe extent tbat tbe court takes possession of tbe property, tbe proceeding is in rem. “There is, however, a large class of cases which are not — 63 — strictly actions in rem, but are frequently spoken of as actions quasi in rem, because, though brought against persons, they only seek to subject certain property of those persons to the discharge of the claims asserted. Such are actions in which property of nonresidents is attached and held for the discharge of debts due by them to citizens of the state, and actions for the enforcement of mortgages and other liens. Indeed, all proceedings having for their sole object the sale or other disposition of the property of the defendant, to satisfy the demands of the plaintiff, are in a general way thus designated. But they differ, among other things, from actions which are strictly in rem, in that the interest of the defendant is alone sought to be affected, that citation to him is required, and that judgment therein is only conclusive between the parties.” Freeman v. Alderson, 119 U. S. 187, 30 L. ed. 373, 7 Sup. Ct. Rep. 165. See also Merritt v. American Steel-Barge Co. 24 C. C. A. 530, 49 U. S. App. 85, 79 Fed. 228. 6. The complainant herein claims that his proceeding in the Federal court is in rem or quasi in rem, and that the proceeding in the local court was in personam. He contends the result is that the court first acquiring possession of the res first acquired possession of the suit. There is no doubt that upon the filing of a proceeding strictly in rem, the court acquires possession, and, while other courts may proceed in personam, they cannot touch the res. That is said to be in gremio legis, or, as it is sometimes expressed, in custodia legis, and, of course, cannot be affected by the process of any other court. A proceeding in rem, however, is independent of the service of any defendants, while in the case at bar it is not contended that this suit could proceed without service — 64 — ■of the defendant. The contention is that the proceeding at bar amounts to a proceeding quasi in rem, whose nature requires the court to have possession of the property, in this case of the ■Central Yannina. If this be so, to that extent the proceedings would be in rem, and the possession of this court would give it jurisdiction. Heidritter v. Elizabeth Oil Cloth Co. 112. U. S. 294, 28 L. ed. 729, 5 Sup. Ct. Rep. 135; Ellis v. Davis, 109 U. S. 498, 27 L. ed. 1010, 3 Sup. Ct. Rep. 327; Palmer v. Texas, 212 U. S. 118, 53 L. ed. 435, 29 Sup. Ct. Rep. 230. 7. A receivership, however, does not necessarily constitute a proceeding in rem. A receiver may be used for different purposes. Under statutes it is a remedy sometimes allowed for special purposes, and in equity it is a remedy which, like injunction, may be used for a special purpose, or it may constitute the gist of the action. It is true that a receivership is never a final status. It is not a situation which the court desires to perpetuate; but, where the possession of the court by a receiver is essential to the administration of the suit, it is, ■so far as that suit is concerned, an end in itself. To use a philosophical phrase, it is there, so to speak, a ding an sich. So that the fact of a receivership is not conclusive. The question is, What kind of a receivership is it? Or rather, what kind of a suit is it in which the receivership is invoked ? This difference applies even in creditors’ bills. A single creditor may file a bill to set aside a fraudulent conveyance and subject the property to his debt, and a part of the procedure may be the appointment of a temporary receiver; while on the other hand, what is called a general creditors’ bill is one filed by one or more creditors on behalf of all who may join in, and seeks to marshal the assets of the defendant debtor and establish priorities, if any, among the creditors, and, as neces — 65 — sary to tbis end, have all tbe assets administered by a receiver until the end of the suit. A single creditors’ bill is in rem to a much more qualified extent, just as a mortgage foreclosure is a proceeding in rem. Farmers’ Loan & T. Co. v. Lake Street Elev. R Co. 177 U. S. 51, 44 L. ed. 667, 20 Sup. Ct. Rep. 564. There is no question that the bill filed by the complainant herein is a general creditors’ bill, brought by one on behalf of all creditors, requires the possession by a receiver, and seeks to marshal assets and pay creditors according to their respective priorities. These are the essential features of a general creditors’ bill. It is a bill quasi in rem and for all the purposes of this suit must be treated as such. 8. The crucial question in this case is, When, in such a proceeding, does the jurisdiction of the court attach? As involving questions both in rem and in personam, the solution is not easy. Indeed, the present view of the courts has only been reached by judicial evolution. There is no question that first legal possession of the res gives jurisdiction. The earlier view, advanced in 1875, by no less acute a mind than Mr. Justice Bradley, was that prior actual seizure settled the question of conflicting jurisdictions. Wilmer v. Atlanta & R. Air-Line R. Co. 2 Woods, 409, Fed. Cas. No. 17,775. This has been followed in other cases, such as East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L.R.A. 109, 49 Fed. 608. The Bradley view was opposed at the time by Circuit Judge Woods, and vigorously renounced in 1895 by Circuit Judge Pardee in the same fifth circuit, in Adams v. Mercantile Trust Co. 15 C. C. A. 1, 30 U. S. App. 204, 66 Fed. 617. — 66 — 9. Porto Eico being practically a circuit of itself, we are not bound by these decisions, and can give the matter original consideration, and there would seem to be a serious question whether a constructive possession by filing a bill in equity will obtain in Porto Eico in any case. The mortgage law of Porto Eico aims at having upon the registrar’s records all liens which affect real property. The theory ■ of constructive possession is that the filing of the bill creates a lis pendens, affecting everyone. Wiswall v. Sampson, 14 How. 66, 14 L. ed. 328. It even prevents a similar lien of another court from attaching. It has been held, however, that no Us pendens arises in Porto Eico on account of the provisions of the mortgage law. Romeu v. Todd, 206 U. S. 358, 51 L. ed. 1093, 21 Sup. Ct. Rep. 724. Under this it would seem that there can be no constructive possession of property, an incipient change of title, unless it "is first registered in the usual record offices. There is, of course, no suggestion that this was done as to either Federal or local proceedings. This would not affect the Federal receivership, because it was immediately accompanied by actual possession. • Nor would this principle affect proceedings strictly in rem, as in admiralty; for these exist independently of any local statute and cannot be affected by any local law. 10. If, however, it were allowable to disregard the question whether rights have not attached hereunder in behalf of the-complainant, the view which will avoid unseemly conflicts of officers of different courts would be preferable. This considers jurisdiction as not dependent upon actual seizure, but on acts equivalent to dominion. “Jurisdiction of the res is obtained by seizure under process — 67 — of tbe court, whereby it is held to abide such order as the court may make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular cause depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause. “While the general rule in regard to jurisdiction in rem re* quires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which, being incapable of removal, and lying within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court by the officer’s levy of the writ and return of that fact to the court. So the writ of garnishment or attachment, or other form of service, on a party holding a fund which becomes the subject of litigation, brings that fund under the jurisdiction of the court, though the money may remain in the actual custody of one not an officer of the court. “When we come to the application of these principles to the case before us, that which leads to some embarrassment is the complex character of the proceedings which we are to consider. “Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and to subject his property, lying within the territorial jurisdiction of the court, to the payment of that demand.” A good example is found in McKinney v. Landon, 126 C. C. — 68 — A; 226, 209 Fed. 300. This was where the state of Kansas sought in. a local court under a local statute to wind up the business of a corporation for violating its anti-trust laws, a suit of high privilege, practically in rem. After this proceeding had continued for some time, a local stockholder brought suit against the same defendant in the Federal court and secured the appointment of a receiver. When the local proceedings had reached the point of dissolution of the corporation, the local court also appointed receivers, and upon their applying to the Federal court the Federal receivers were discharged and the property turned over to the local receivers. This furnishes an instance of a proceeding quasi in rem, where the state as a sovereign sought to dissolve a corporation for violation of law, and by a receivership wind up its business. Although the two parts of the proceedings were separated by some space of time, they made up one whole, and the Federal court respected the local suit as a unit. 11. It is contended by the local receivers in the case at bar that' they come within the same rule, and this requires a consideration of the question whether the Porto Pico procedure in' which those receivers were appointed is in rem. The suit filed in the San Juan district court is brought under Title' VIII. of the Code of Civil Procedure, relating to “Provisional Remedies in Civil Actions.” The first chapter of this title' is on “Arrest and Bail in Civil Actions,” the second, “Claim and Delivery of Personal Property,” and the third, the one in question, on “Receivers.” A receiver, according to § 182, may be appointed by the court in which the action is pending or has passed to judgment, or by the judge thereof, in the following cases: — 69 — “1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between parties or others jointly owning or jointly interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured. “2. After judgment, to carry the judgment into effect. “3. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceedings in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment. ■ “4. In the case when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. “5. In all other cases where receivers have heretofore been appointed by the usag'es of courts of equity.” The proceeding at bar is not after judgment, nor is it im tended to cover the case of an insolvent corporation, which would seem to be a public suit by the government. It must come either within the provision as to all other cases “where receivers have heretofore been appointed by the usages of courts of equity,” or in an action “by a creditor to subject any property or fund to his claim, . . . where it is shown that the property or fund is in danger of being lost, removed, or materially .injured.” In the second instance the suit is clearly of one creditor seeking to recover his own debt, and in the other it is uncertain what is meant, as there is no other grant of — 70 — equity powers. Receivership under this section is evidently thought of as a “provisional remedy,” just as in the act of March 1, 1902, the effectiveness of a judgment is secured by what is called the “provisional remedy” of attachment. An attachment does not amount to a proceeding in rem, so far as relates to the property properly attached, until after the court has taken charge of the property, when it becomes therefore in custodia legis. If receivership under the Porto Rico Code is meant to be analogous to this (and the words “provisional remedy” are used as to both), receivership is not in any sense of the word the object of the suit. It is merely incidental, and the section would cover only a single creditors’ bill. Indeed, the wording of the petition in the local court seems to run upon that theory. The petitioner sets forth his claim, and where he mentions others it is only by way of inducement, to show the probability of the loss of his own. He nowhere sets out the necessity for a receivership in order to marshal assets for the payment of all debts, and calling in all creditors —the essence of a general creditors’ bill. The receivership would seem to be an incident to his own claim and no more.. It may be the practice to extend this so as to allow others to file claims, but, if so, it is a procedure broader than the statute under which it is brought. It is possible, as in the Foraker act as to this court, to adopt the whole of equity law by a few words. Was equity law cn the subject of creditors’ bills adopted en bloc by the words in the Code of Civil Procedure, § 182, “where receivers have heretofore been appointed by the usages of courts of equity ?” A creditors’ bill requires much more than a receiver. The suit necessitates the ascertainment of liens and priorities, and the — 71 — marshaling of assets and administration of a complicated trust, and calls for practically all the principles and remedies of equity. It bas been expressly held in Montilla v. Van Syckel, 8 P. R. R. 155 (decided a year after the adoption of the Code of Civil Procedure), that “a system of equity jurisprudence, sucb as that administered in the Federal courts of tbe United States and in some of the state courts, has no place in the system of laws enforced and practised in the insular courts of Porto Rico,” and no exception in favor of creditors’ bills seems to have been established by statute or decisions of the Porto Rico court of last resort. 12. The Porto Rican statute is almost identical with that of California, and it may be well to examine the decisions of that state for light upon the subject. There are a number of decisions, but they seem to be based upon the leading case of La Societé Francaise v. District Ct. 53 Cal. 495. In this case a receiver was appointed for a corporation, and on certiorari to the supreme court it was held that § 564 of the Code of Procedure, corresponding to the Porto Rican § 182 above mentioned, covered the only cases in which a receiver could be appointed for a corporation. This court holds that in California there is no jurisdiction in equity to appoint a receiver of corporate property at the suit of an individual, ■except under this statute. The statute does not create a new substantive right of action, and the only provision applicable is that where the corporation is insolvent, and the court holds that this does not give the right to an individual creditor to “seize its property out of the hands of its constituted manager and place it in the hands of a receiver.” This, the opinion goes — 72 — oil to observe, is materially different from tbe New York parent statute. In other words, a general creditors’ bill to have a receiver administer the property of an insolvent corporation as a trust is not conferred by this statute. To the same effect are later decisions. McLane v. Placerville & S. Valley R. Co. 66 Cal. 606, 616, 6 Pac. 748, decides that a receivership in California is a “provisional remedy,” bearing the same relation to a court of equity that attachment does to a court of law. In Yore v. Superior Ct. 108 Cal. 431, 435, 41 Pac. 477, it is held that a receivership under the California Code is merely auxiliary to a pending action. To the same effect is Murray v. Superior Ct. 129 Cal. 628, 632, 62 Pac. 191. The California law seems to regard a receivership as a provisional remedy like attachment, and an attachment does not sequestrate property, and does not prevent the levy of the process of other courts, until it is actually levied. In other words, attachment, and by inference receivership, are in California remedies in aid of suits in personam, and until levy do not amount to proceedings in rem or quasi in rem. If this is true in California under a series of Codes which undertake to digest the common law, including equity, into one system, a fortiori it is true in Porto Rico, which never had an equity system as such. 13. In the view that we take of the situation, therefore, the Federal court and the local court have different kinds of jurisdiction. The local court has jurisdiction of a suit of a creditor in personam, and incidentally will afford a provisional remedy by receivership, while the Federal court has jurisdiction of a creditors’ bill to administer corporate property as a trust, which, to all intents and purposes, is a proceeding in rem. — 73 — As said, by Chief Chief Justice Taney in Ableman v. Booth, 21 How. 516, 16 L. ed. 173, the limits of the two jurisdictions are as if marked off tangibly by monuments. It is possible that there can be an apparent conflict, as where, in the Moran Case, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019, a state receiver demands possession of vessels seized in rem by the United States marshal. Somewhat as in that case, the Federal court has a possession m rem, which does not really conflict with the rights of the local court, because that court had no right to the property until an actual seizure, which it did not make. The provisional receivership becomes in rem only after levy or sequestration. See East Tennessee, V. & O. R. Co. v. Atlanta & F. R. Co. 15 L.R.A. 109, 49 Fed. 609, which also presents the case of an intended friendly receivership and decides adversely to it. 14. It is true that the absence of local statutes may influence the procedure in the United States court also. At a time not very remote it might have been questioned whether a bill of the kind at bar would be recognized except under state legislation. 6 Pom. Eq. Jur. §§ 125, 662; Cates v. Allen, 149 U. S. 457, 37 L. ed. 807, 13 Sup. Ct. Rep. 883, 977. But at least this question does not arise in the present case. This court has taken jurisdiction of the bill and has possession of the property. If such a bill could not be sustained in this court, a point not before us, that would not be a reason for turning the property now under administration in this court over to receivers of another court which had as little jurisdiction. 15. It is not considered necessary to discuss the motion of the defendant to vacate the order appointing receivers. Practically the same question was raised and decided on its — 74 — previous plea to tbe jurisdiction. Tbe ground wbicb seems to be relied upon is that receivers cannot be appointed without notice to tbe defendant. Tbis point bas already been decided •on tbe previous application. Whatever may be tbe state practice, Federal courts will appoint receivers ex parte in cases which they deem urgent. Taylor v. Easton, 103 C. C. A. 509, 180 Fed. 363. See also Miltenberger v. Logansport, C. & S. W. R. Co. 106 U. S. 306, 27 L. ed. 125, 1 Sup. Ct. Rep. 140. Tbe claim that there has to be service of tbe defendant before .a receiver can be appointed is of much tbe same character. Tbe court, in carrying out its duty to prevent tbe wasting of a res over wbicb it is assuming jurisdiction, will not stand upon ceremony. It will, in what it deems a proper case of urgency, appoint receivers before defendant is served. These are only to preserve tbe property, and cannot in any proper sense be said to injure either claimant. If it should be that there is impropriety in such appointment, tbis can be brought to tbe attention of tbe court by motion to discharge tbe receivers. It is not perceived bow tbe defendant in tbis case is injured in tbe slightest degree, as it'was co-operating with creditors in seeking to have receivers appointed. It is true that tbis was in another court, but it was a practical confession of tbe urgency of tbe situation. Tbe court sees no reason to think it committed any error in making tbe appointment. It follows, therefore, that tbe motion of tbe defendant must be overruled, and that tbe application of tbe local receivers must be denied. It is so ordered.