CORNUE v. INGERSOLL et al.; CUMMINGS v. SAME, 176 F. 194

ALDRICH, District Judge (after stating the facts as above). _ These _ two cases were summarily dismissed by the Circuit Court, upon its own motion, upon the ground that they were in contempt and evasion of law and in defiance of a final decree entered under the order of the Supreme Court. Ingersoll v. Coram, 211 U. S. 335, 29 Sup. Ct. 92, 53 L. Ed. 208; opinion of Circuit Court November 17, 1909, 174 Fed. 666. See, also, 148 Fed. 169, 78 C. C. A. 303; 136 Fed. 689.

They were originally commenced in the state courts of Massachu-' setts, and were removed to the Circuit Court of the United States upon the ground of diverse citizenship, and upon allegations which it is claimed' raise a federal question upon the face of the bills. They are based upon an alleged out of court arrangement in Montana between, five heirs of Davis, after a part of the estate had been passed over to the group eu masse and without division, whereby Root and Coram retained more Ilian the distributive shares of Mrs. Cornue and Mrs.

Cummings to meet the expenses of litigation and other expenses, under an arrangement and under circumstances which, it is said, contemplated that the complainants’ interests should be made good in the end out of the funds in Massachusetts. Thus they in effect say that tlieir claim is one which should cut under the lien, upon the ground that they acquired title to the property from Root and Coram earlier Ilian its creation; and it is conceded that, if this claim is established, it will absorb the entire fund against which the lien decree of the federal court is directed.

In other words, in effect and substance, the complainants say that they individually own the entire property now in the probate court of Massachusetts against which the decree of the federal court is directed, and that they own it by virtue of a segregation and private adjustment of the community interests made between the heirs before the lien, and consequently that there is no property upon which the lien can operate.

Such being their claim, the complainants could not have expected or even hoped to prevail in an independent proceeding in the state courts, except upon the hypothesis of a judgment based upon findings and holdings that the express terms of .the decree of the Circuit Court, entered in accordance with the opinion of the Supreme Court, are invalid and inoperative in respect to the property in question. It was plainly the purpose to secure a result in 'another court which would wholly prevent the execution of the decree of the Circuit Court of the United States.

With that purpos-e, the complainants invoke independent collateral proceedings in another court, through which it is intended to drive a fatal blow at the right established by the decree of the Circuit Court. Indeed, the purpose is made quite plain by the allegations and prayers, which plainly mean, if they prevail, a complete and effective overthrow and nullification of the operative effect of the decree of the Circuit Court in respect to the property right which it assumed, in clear and unmistakable terms, to declare and establish.

If such process is possible by way of collateral attack, the inevitable result would be a direct conflict between the two courts, and direct conflict between their final decrees directed against the same specific property, because the decree of the Circuit Court assumes to define the status of the property right, and the decree sought in the state court is one which would completely nullify, not only the operativeness, but the express terms, of the decree of the Circuit Court, which was a court of competent jurisdiction, and one which had first assumed control over the subject-matter in controversy.

To the proposition that the subject-matter of the controversy in question was something which might be dealt with finally and effectively in the federal courts, it is only necessary to refer to the recent decision of the Supreme Court in Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 Sup. Ct. 10, 54 L. Ed. - (December, 1909), and to the familiar general rule that, as between two courts of competent jurisdiction, the one which first assumes’ jurisdiction over a controversy will hold it for the purpose of ascertaining and establishing the controverted rights.

These proceedings, notwithstanding the proper jurisdiction of the federal courts, seek in the end to seize and hold a property now in the custody of the probate court of Massachusetts, notwithstanding-, and in violation of, a final decree entered against it in accordance with the decision of the Supreme Court of the United States, in which that court declared a right in respect to the same property which it specifically described and named.

Thus, at their inception, they seek a result in a' collateral proceeding- which would utterly set at naught the authority of the Supreme Court sought to be enforced, with respect to subject-matter over which it had assumed jurisdiction, and in respect to a right which it had assumed to establish, through a final decree entered under its direction at the end of litigation.

An independent proceeding to such an end would be subversive of judicial authority; and a rule which would permit it would put at unrest and in disorder rights supposed to have been settled and established by courts of competent jurisdiction and of last resort. Previous to the will contest, the Ingersoll service, and the lien litigation, a one-third interest of Mrs. Cornue and of Mrs. Cummings in the Davis estate was assigned to Root and another, “to be expended on account of the settlement of said estate and opposing the probate of said will.” The fact of such assignments was before the Supreme Court (211 U.

S. 335, 337, 29 Sup. Ct. 92, 53 L. Ed. 208), and is established for purposes of this case, because it is set out on the face of the present Cornue and Cummings bills, at paragraph 4, and the established fact of the assignments is something important to be considered upon tlie question of estoppel and adjudication.

The decree in the Circuit Court, so far as the Cornue and Cummings interests were concerned, took jurisdiction over that one-third only, and it is not understood that the decree operates upon any interests other than those of Root and Coram as enlarged, of course, by the assignments of the one-third interests of Mrs. Cornue and Mrs. Cummings and others.

If these complainants had any possible interest in the one-third which they had conveyed, the only part of their interests upon which the decree operated, that interest, as was doubtless assumed by the Supreme Court, was represented in the original lien proceedings by their assignees and by the administrator, who had the custody of the property, who answered, and who rightfully represented whatever community interest there was centering in the estate over which he had control.

It must be remembered that the lien proceeding was quasi in rent (Black on Judgments, §§ 792 — 795), and in no sense was the decree in personam as to these complainants. The decree operated in rent only as to the Cornue and Cummings interests in the hands of Root and Coram, who were the assignees, and held, in addition to their own original interests, the legal title to the Cornue and Cummings interests to which the lieu attached.

It must also be remembered that the independent proceedings in the state courts were in no sense proceedings to correct or modify a decision which the court having custody of the res had assumed to make; but they are proceedings which entirely ignore and set at defiance all that has been done in respect to the res, over which at least the court had rightful and unquestionable jurisdiction.

The subject-matter, in the lien sense, so far as concerns the shares of these complainants, with which they had parted title, was the one-third interest upon which the lien is asserted, and over this the United States court had properly assumed jurisdiction, and had established a right by its decision. Among the higher duties of courts is that of seeing that their final process is effective to secure and establish the rights which, at the end of litigation, are found to exist. The Supreme Court charged the lien upon specific property interests which were described in apt words.

The effect of the decision was to attach the lien to the property and create a right therein in behalf of the Ingersoll estate. The decision of the Supreme Court is to be accepted as it is expressed, and we deem it neither necessary nor proper to attempt any defense or explanation of the result reached, further than to say that the fact of the assignments was before the Supreme Court (211 U. S. 335, 370, 29 Sup. Ct. 92, 53 L.

Ed. 208); that upon such status of legal title to tlie one-third, with such parties as the Supreme Court had before it, and upon such representative conditions as existed in respect to tlie res through the appearance of the assignees of the one-third Cornue' and Cummings interest and the Cummings answer (211 U. S. 335, 312, 29 Sup. Ct. 92, 53 L. Ed. 208), and upon such representative capacity as was involved in the appearance and answer (211 U. S. 335, 342, 29 Sup. Ct. 92, 53 L.

Ed. 208) of the administrator of the estate, who liad custody of the community interests,- and who joined in the common purpose to defeat the lien, that court assumed to establish the right. Upon argument the complainants put their case upon the ground that the decree of the federal court amounts to a judicial invasion of their rights without notice.

The complainants, at least, had knowledge of the lien proceeding and the Supreme Court decision at the time they started these suits in the state courts, and, having that knowledge, and feeling aggrieved, they might well have acted with the regard ordinarily held for a final decision by a court of competent jurisdiction.

An .orderly and appropriate remedy would have been some one of the usual and well-known proceedings in the nature of intervention to correct the decree, like a bill in the nature of a bill in review, like an auxiliary bill in equity joining all the parties, or any one of the simple intervening petitions for that purpose, which addresses itself to the court charged with the duty of enforcing its final decree, to the end that it may be corrected if wrong- is being done.

Such a proceeding would become a part of the case before the court which had assumed to establish a right, and one, of course which would naturally involve all necessary and proper considerations of notice and estoppel. Such proceedings were invented to avoid circuity of action, multiplicity of suits, and the menace to rights involved in threatened judicial conflict, and to meet situations like the one in question, and to afford a full, proper, and adequate remedy.

Such remedies are based upon the charitable assumption, usually indulged, that a court of competent jurisdiction can do justice and right wrongs, if, through inadvertence, its decrees are operating too broadly. We take judicial notice of the scope of the lien proceeding and of what had been decided in the Circuit Court, the Court of Appeals, and the Supreme Court, as well' as judicial notice of the important fact that the term of the Circuit Court, in which the decree was entered, was still open.

The February term of the Circuit Court begins on the last Tuesday of February and ends on the third Tuesday of October. The decree was entered April 15, 1909, and thus the lien decree directed by the Supreme Court was within the control of the Circuit Court at the time the complainants instituted their proceeding in the state court.

The term being open, the cases which hold that federal courts lose control of their decrees at the end of the term have no application whatever, and the power of the Circuit Court, upon apt proceedings, to correct its decree, if an inadvertent wrong was being done, was at that time something beyond question. Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Goddard v. Ordway, 101 U. S. 745, 752, 25 L. Ed. 1040; Ætna v. County Commissioners, 79 Fed. 575, 25 C. C. A. 94; Phillips v. Negley, 117 U. S. 665, 675, 6 Sup. Ct. 901, 29 L.

Ed. 1013; Freeman on Judgments, § 100; Black on Judgments, §§ 301, 305; Seton on Decrees, c. 787; 2 Daniell, Ch. PI. & Pr. (Gth Ed;) §§ 1026, 1027; 17 Am. & Eng. Enc. Law (2d Ed.) 837. If there was a grievance, it was not necessary and justice did not require resort to independent process in another court — process which in substance and effect, if maintained, must entirely ignore the intended operative effect of the decision of the Supreme Court.

Thus the conclusion is inevitable that the purpose was to get away from the court exercising jurisdiction in respect to the subject-matter of the property in question, and which had assumed to establish a right, and to seize and hold through the instrumentalities of state process property which the Supreme Court had assumed to decide belonged to another party.

The complainants urge their supposed grievance with surprising and unusual warmth and vigor, upon the erroneous supposition that the failure of the Circuit Court to loosely abandon and recede from its own final mandate under subversive collateral attack left them without redress, and that important and sacred property rights have thus been wrested from them, and great wrong done, through judicial intervention without notice, and in violation of fundamental law. The argument which involves the claim of judicial invasion is an unfortunate one.

We are reluctant to accept such an argument seriously, because we do not think the premises in this case warrant it. Moreover, the history of American courts is not one of judicial invasion. Courts are usually content if they succeed fairly well in the direction of orderly procedure, in the avoidance of unseemly conflict of judicial authority, and in making their decrees effective to establish rights -which it is found that parties are entitled to.

Aside from the idea of having intervening and ancillary remedies, with scope and function sufficient to avoid circuity of action and multiplicity of suits, and of affording direct remedies and opportunities for redress in the same court, to the end that useless conflict shall not occur between different courts, is the other idea that judgments and final, decrees shall not be subject to collateral attack.

If adverse independent collateral proceedings like these were recognized and encouraged, property rights would be in confusion, and all sorts of conflict of jurisdiction and decision would result, and in the end, logically and necessarily, force; because with two adverse decrees in rein, and neither party yielding, how, in the last analysis, could the property right be at rest, except through force? Surely each of two adverse independent final decrees in rein could not effectively operate to take the whole of a specific property.

Speaking with moderation by way of characterization of the particular proceedings in question, they are in their nature insidiously and alarmingly well calculated to bring courts, which aim to exercise their respective rightful jurisdictions under motives and principles of useful comity, into direct, open, and unseemly conflict upon final process.

It was to avoid deprecated conflict of judicial authority that rules against collateral attack upon judgments and final decrees, as well as ample remedies in the nature of direct attack, were invented and enlarged, to the end that parties claiming to be aggrieved by the operation of a decree without notice may have their day in court and full redress.

The rule which requires direct attack and, forbids collateral attack upon final judgments and decrees is a rule of public and judicial necessity, and is founded upon considerations which wholly exclude the idea of a laxity which shall tolerate an independent collateral- proceeding to disestablish in another trial that which has been expressly established upon a former trial upon the merits.

As argued, it is true, a plea in bar may furnish a remedy against this; but that is not the only remedy, and where the identity of the property is unmistakable, and the purpose to disestablish the result of a former adjudication is clear, courts may not always subject parties to another trial upon a plea in bar, and to the expense and delay incident to such a defense.

In its consideration of the question of contempt and evasion of law, and what had theretofore been decided in respect to the property in question, the Circuit Court was not dealing with the question whether the state court had in fact assumed jurisdiction, whether a plea in bar would be effective in that court or any other, or at all with the question as to what the state court would probably do or not do. - It was only dealing with the purposes of the complainants, in view of its own knowledge as to- identity of parties and property, and as shown' upon the face of their bills.

These proceedings, instituted in one court to disestablish or render inoperative what had been established in another, were removed to, the .court which established the right sought to be overthrown; and that court, having before it the cases upon motion to remand, without deciding or considering the question of diverse citizenship, or other particular grounds upon which they were removed, finding them to be in contempt of law and of what it had done under the direction of the Supreme Court, denied the motion to remand and summarily dismissed them.

Having found the proceedings to be in contempt and in evasion of the decision already made, we are not aware of any imperative rule of law which required the Circuit Court to lend potency to their existence by considering the question of diverse citizenship, or, on motion of the complainants, who held its decrees in contempt, to lend force to their offending purpose by remanding their cases to the state court. If the requisite diverse citizenship did not exist, as the complainants claimed, surely the order of dismissal violated no substantive right.

These cases having been removed to the Circuit Court, that court treated the proceedings as not ancillary, but in contempt of what the federal court had decided and was doing, and dismissed them, and the order or decrees should be affirmed. In each case the decree is as follows : The decree of the Circuit Court is affirmed, and the appellees recover their costs of appeal.