Mrs. Vesta G. JOHNSTON, Appellant, v. Calvin S. BYRD and Ray D. Bridges, Appellees, 354 F.2d 982

PER CURIAM: The sole question presented by this appeal is whether the United States District Court for the Southern District of Alabama erred in dismissing the appellant’s complaint for want of subject-matter jurisdiction or, more specifically, whether this is a suit “arising under” the Constitution and laws of the United States as required by 28 U.S.C.A. § 1331. Appellee Byrd obtained a civil judgment in an Alabama court against appellant’s husband in the amount of some $31,000.

The appellant alleges that personal property claimed by her and valued in excess of $10,000.00 was seized and advertised for sale by co-appellee, Ray D. Bridges, Sheriff of Mobile County, under a writ of Fieri Facias. As a result she claims that she was thereby rendered a literal bankrupt and unable to contest the seizure pursuant to Title 7,

Section 1168 of the Alabama Code, 1940, which requires the posting of a bond not to exceed double the value of the property. Appellant further alleges that her husband, J. B. Johnston, defendant in the civil suit has prayed for an appeal to the Supreme Court of Alabama from, the judgment rendered against him but that he is unable to make a supersedeas bond pending the appeal.

The complaint fails to allege that the plaintiff sought any relief in the Circuit Court of Mobile County, Alabama, that she informed the Sheriff of her claim to the property or otherwise sought to bring to the attention of the court, the Sheriff or anyone else connected with the proceedings, her claim of interest or ownership in the property. The Alabama law deals with remedies after the issuance of writs by Alabama courts pursuant to which there is a levy on personal property.

In such case a person who is not a party to the writ but who claims to own title or a lien paramount to the title or interest in the property of the defendant in the state court writ may try title to such property before a sale by complying with the statute and “ * * * executing bond with two good and sufficient sureties payable to the plaintiff In double the value of the property levied on and claimed * * * but in no case more than double the amount of the writ levied * * * ” Appellant sought an injunction prohibiting the sale and money damages for wrongful seizure.

She alleged jurisdiction under 28 U.S.C.A. § 1331, claiming that the Alabama law violates her rights to due process and equal protection as guaranteed by the Fifth and Fourteenth Amendments by requiring her to post the bond. The District Court granted appellee’s motion to dismiss for want of subject-matter jurisdiction. Essentially, this case presents a contest as to who owns the title to certain personal property located within the State of Alabama. State law determines that question, not federal law. A question of federal law is often “lurking in the background” of every case.

In order to invoke the jurisdiction of a federal court there must be “a substantial claim founded 'directly' upon federal law.” Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ; Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Pierre v. Jordan, (9 Cir. 1964) 333 F.2d 951; 2 Moore, Federal Practice ff8.09 [1], at 1648 (2nd ed. 1964); Wright, Federal Courts § 17 (1963).

Any federal questions sought to be raised by the complaint are purely incidental to the efforts of the plaintiff to enjoin a Sheriff’s sale pursuant to a state writ and to recover a money judgment in the federal court. The judgment of the District Court is affirmed. . 28 U.S.C.A. § 1331(a) “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.” . See 33 C.J.S. Executions §§ 168, 169.