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vol. ,53.
JOSEPH et aI. v. 1\'EW ALBANY STEAM FORGE & ROLLING MILT. 00. (Circuit Court, .D. Indiana. No. 8,767. 1. SERVICE OF PROCESS-CONCLUSIVENESS OF RETURN-COLLATERAL ATTACK.
November 1, 1892.) .
In Indiana" the return of the sherifl', showing that he has made service in the manner prescribed by the statute, is conclusive, as against a resident of tb.e state, both as to facts in the personal knowledge of the officer and facts which he must ascertain from others; and such return cannot be impeached collaterally, for the purpORe of quashing the service and return and ousting the court of jurisdiction, by showing that the facts statl:d in the return are untrue. .
2. SAME7'""STATE STATUTES-RuLES OF COURT.
The federal circuit court for the district of Indiana, having adopted the st:l.te statutes relating to service of process in actions at law, is bound by the statute, as coustrued by the supreme court of the state; and, as there .to be no difference iJ,l tb,e, force and effect of the marshal's return . iIi actions at law and sui+,a inequity, a return to a subpoena in chancery. '>s1).qWing tb,at service )las in the manner by the statute, Is aglii.nBt a' collateral attack. ' .
:rn'Equity. Bill by Joseph Joseph and othets against the New Albany Steam Forge & Rolling Mill Company. On motion to quash the' service and return. ' Overruled. C. l;J, & H. E. Jewett, for plaintiffs. ,William. A. Ketcham, for defendant. BAKER, District Judge. Suit by plaintiffs, citizens of the state of Ohio, a,gainst .the defendant, a corporation organized and existing under the laws of 't he statepf Indiana, and a,citizen thereof, to foreclose a pledge of chosesin action, and for other equitable relief. A subpoena in chancery in this case was issued in due form to the marshal of district, June 6,. 1892, and he D;lade. return of his doings, indorsed on said writ, as fQ!.\pws: "I receiv.ed this writ at Indianltpolis, in said district, at 12 o'clock M., June 6, 1892, and. served the same as follows: I read this writ to and in the presence and hearing of John Marsh, agent of the within-named defendant, in custody of all its property and In charge of its office, and by leaving with said Marsh a true copy of this writ at the office of the defendant company, at New Albany, Indiana, June 13th, 1892. 'l'he president, vice president, secretary, superintendent, manager, or .any other superior officer or agent of said company. except John Marsh, not found. "Willi:1111 L. Dunlap, U. S. Marshal. "By James N. Payton, Dept."
The defendant moves to quash the service and return on the ground that said Marsh was not its agent, nor in its employ, at the time of, or since, the service of the writ as aforesaid. This motion is supported by the affidavit of· John.Marsh, who deposes that he was not the agent, nor in any manner in the employ, of the defendant, when the writ was· served. ,This affidavit is controverted in some of its by the counter affidavit of the deputy marshal who executed the writ. If '. required to dispose of the motion on the return and affidavits, I should feel great hesitancy in quashing the service
JOSEPH
v.
NEW ALBANY STEAM FORGE & ROLLING MILL CO.
1&1
and return of a sworn officer, on the showing made. I think, however, the motion must be overruled on other grounds. 1. Whatever may be the rule in other states in regard to the effect of the return of an officer in executing mesne or final process, I think it the settled law in this state that the return of a sheriff showing that he has served the writ in the manner prescribed by the statute, for the purpose of giving the court jurisdiction, is conclusive against a collateral attack. Smith v. Noe, 30 Ind. 117; Rowell v. Klein, 44 Ind. 290; Splahn v. Gillespie, 48 Ind. 397; Johnson v. Patterson, 59 Ind. 237; Stockton v. Stockton, Id. 574; Hite v. Fisher, 76 Ind. 231; Hume v. Conduitt, Id. 598; Birch v. Frantz, 77 Ind. 199; Johnson, etc., Co. v. Bartley, 81 Ind. 0106; Coan v. Clo,,,, 83 Ind. 417; Krug v. Davis, 85 Ind. 309; Nichols v. Nichols, 96 Ind. 433; Nietert v. Trentman, 104 Ind. 390, 4 N. E. Rep. 306. It is argued that while the return may be conclusive, for the purpose of conferring jurisdiction, where the facts stated in the return are within the personal knowledge of the officer, it ought not to have such conclusive effect where the facts stated in such return presumably rest upon information derived from others. In my opinion, where the facts stated in the return are such as the law requires the officer to ascertain and return Ilnder his oath of office, the manner in which he has ascertained the facts is immaterial. In every instance of the personal service of process, the officer must determine that the person served is the identical person named in his writ. So, where service is made by copy left at the defendant's last and usual place of residence, the officer must determine the identity of the party, and that the place where the copy is left is the last and usual place of residence of such party. The law has intposed the duty of ascertaining these facts upon the sheriff, and whether he finds and returns the facts from personal knowledge, or otherwise it makes no difference in the rule of law. Splahn v. Gillespie, 48 Ind. 397; Hite v. Fisher, 76 Ind. 231. If it were open to h party to contradict the sheriff's return collaterally, in every case where the facts returned by him did not lie within his personal knowledge, it would open the door to endless con{1ict and confusion. The law in this state is firmly settled that the facts which the sheriff is required by law to ascertain and return in obedience to his writ. when so ascertained and returned by hiln, cannot be impeached collaterally, by a resident of the state, for the purpose of quashing the service and· return and ousting the court of jurisdiction, by showing that the facts exhibited in the return are untrue. If the facts were falsely returned by the officer, knowingly or corruptly, with the privity or consent of the plaintiff, or if the party was a nonresident of the 'State, a different rule of law might apply; but, as no such case is here presented, it is not necessary to express an opinion on the question. 2. It is not necessary to determine what the rule of law touching the question under consideration may be in other jurisdictions. This court has, by rule, adopted the statute of this state in regard to the service of process in actions at law; and therefore the statute ()f this state, as interpreted by im highest judicial tribunal, must rule the question in actions at law in this court. There ought to be no different r1:.1e as to the force and effect of the marshal's return in
182
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J'SDERAL, REPOkTER,
\'01..53.
in the return of the marshal to a summons in an action at law 'cannot exhibited' in the return to beftnpea.ched collaterally, the same a SUbpoena in chancery are conclusive against a collateral attack. nor authority would any distinction as to the force and:efl'ect of a return to a sumltwnsin all action at law and tht1 force and effect of a like return toasnbpoena in chancery. The motion must be overruled, and it is so ordered. FARMERS' LOAN & TRUST CO. v. KANSAS, CITY, W. & N. W. R. CO. at aL ,(Circuit Court, D. Kansas.·, November 21, 1892.) 1. ,141L1l0Atl :M:ORTGAGES-FQRECLOSURE-AppOINTMEN'l' OF RECEIVERS. In' the foreclosure of, a railroad 'mortgage the appointment of a receivel' is not, a matter of right" but rests 'In 'the sound discretion of the court, anl1 Is a po'¥er to be, sparlngly, and with great caution. SAQ-PI4mETION OF
aotidnsiatlt:LW' and in suits in equity;,· Whenever'the facts exhibited
a
a receiver ,in a rallr9ad foreclosure suit the court may imppse web ('.onditions as appear to be just and, eqUitable, and the pal'ty 3llldDgfor and accepting the appointment on such conditions will be bound thereby. I,
,:In,:
TEllMS.
8. ,8,A»:.-PuFItRll:NTIAL INDlCBTEDNESS+-DIVERTED EA:RNINGS.
',', III raUroad: prefel'entialidebts, which may beprlqrity on the apl10intment of it receiver, are in thol!e which ha'"t\ tHdM to conserve the property, and have been contracted Within a l'etlSOOlllble time, and there is no fixed l'ule (jontrauted more betore·theappolntment; :nor ,is tl!.e, authorit.v to give priorit:v J.!,.IUl'lcd, to casesln which there has. peell a (l1yersioll of income" BONDHOLDERS. .
(.
In a rllliroad .foreclosure sUit the trustee namecl In mortgage represents th<-bdIufuolders, and, if he acts in good faith, whatever him hiuds them. although. they ,are not'ootwU parties; anll they have no right, therefore, to Qe made .parties to the, snlt,except where the trustee is .not actingip. gcod the protectioIl of their interests.
G. SAllE. . , .... . . . · In ttlmltbrought by II ,trustee 'to, a railroad in Kansas It appeareittlillt there were many 'credltorsentitled un,ler the laws of the state to· Uet1s on .the proPerty, or parts of it; and also other creditors who lUllltlwtij;:ht tosubje,et tho ineome apd earU i U!\8 of the. l'O'Ll1 to Ill,) payllIent of claIms.. a;condit·oll.of a receiver. the eourt required the trUstee to Ml!lmt to the payment of all these claims prior to the slltisfa<,'tion of the bonds, and aooordingly the decree of appointment pro,1ded. !for ,the payment of all debts for ticket and freight balance!'!, for work, labor, materials, machinery, fixtures,and supplies of every kind and character ;furnished in tl!-e construction, extension, repair, equipment, or operation· of the road, and all liabilities incurred.in thetransportatioll of freight and"passengers,lncludingdalD:lg-e to person and property, which had aooruedstnce the execution ot, the mortgage, (January 2,1888.) Helit that this was,lI- propere1ltercise ot the court's discretion to impose ,terms, and thattJ?e trustee's a$8ent :was binding upon the bondholders, and the latter' woUld not be permitted to become parties to the suit for the purpOse ofhavlng this decree vacated.'
In Equity. Bill by the Farmers'; Loan' & Trust Company against the City,Wyandotte & Nortllwestern Railroali,Company to . 'Se,e
end
ot
case.