DAY V. GALLUP, 69 U. S. 97 (1864)

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U.S. Supreme Court

Day v. Gallup, 69 U.S. 2 Wall. 97 97 (1864)

Day v. Gallup

69 U.S. (2 Wall.) 97


1. In trespass in a state court against the marshal of the United States for levying on goods which ought not to have been levied on, the marshal's title as marshal is not necessarily drawn in question. He may be sued not as marshal, but as trespasser. Hence a judgment in a state court against a marshal for making a levy alleged to be wrong is not necessarily a proper subject for review in this Court under the 25th section of the Judiciary Act allowing such review in certain cases where "an authority exercised under the United States is drawn in question, and the decision is against its validity."

2. Where a proceeding in the federal court is terminated so that no case is pending there, a state court, unless there be some special cause to the contrary, may have jurisdiction of a matter arising out of the same general subject, although, if the proceeding in the federal court had not been terminated, the state court might not have had it.

The 25th section of the Judiciary Act provides that a final judgment in the highest court of law of a state, in which is drawn in question the validity of an "authority exercised under the United States," and the decision is against its validity, may be reviewed in this Court. With this act in force, Gallup sued Derby & Day Gear, and Allis, in a state court of Minnesota in trespass for taking and carrying away goods. On the 1st April, 1860, the defendants justified under certain writs of attachment and execution issued out of the Federal Court for Minnesota in a certain suit therein

Page 69 U. S. 98

pending wherein Derby & Day were plaintiffs and one Griggs defendant. In this suit, judgment had been given 10th September, 1859, execution issued on the next day, and returned satisfied on the 19th. The justification set up that Allis was attorney of Derby & Day, and Gear, marshal of the United States; that the taking was by Gear as United States marshal, under and by virtue of the writs, and at the request of Derby & Day. The debt from Griggs to Derby & Day the affidavits and order on which the attachment and the judgment on which the execution were issued, were also pleaded by the defendants below, and that the property was the property of Griggs. The plaintiff below replied, denying that the property was the property of Griggs, but not denying the character of the defendants, or that the taking was under federal process.

Gallup's suit against Derby & Day Allis, and the marshal, was brought to trial June 18, 1860; but before the swearing of a jury, was discontinued as to the marshal.

On trial of it against the remaining defendants, Derby & Day and Allis, it was not contended by the plaintiff that any of these parties were guilty of any but a constructive taking -- that is to say, of more than having authorized the marshal to seize under his process, and before the defendants had offered any evidence, and before there had been any proof of a suit pending in the federal court, or of an attachment issued out of such court, or that the said goods had been taken under process, the defendants' counsel moved, on the part of the defendants, Derby & Day and Allis, and also for each of them separately, to dismiss the case, on the ground that there was nothing in the evidence which showed that they, or either of them, had had anything to do with the act of Gear, the marshal, in taking the goods; a defense set up by Allis in his answer as to other defendants than the marshal, and as was said in the motion, not denied in the reply. This the court refused to do, the defendants excepting. The defendants then called the clerk of the federal court and gave in evidence the substance of the attachment suit of Derby & Day against Griggs, showing or endeavoring

Page 69 U. S. 99

to show that the goods attached had originally been their goods; that Griggs had bought them on credit, and that the alleged sale by him to Gallup was a fraud; that the goods were in fact still the property of Griggs. They offered in evidence, also, the simple writ of attachment, which, under exception, the court refused to let go before the jury, unless the affidavit on which it was founded was also produced. Verdict was, however, given against Derby & Day and Allis, the attorney, though afterwards set aside as to this last. Judgment having been entered against Derby & Day the case was taken by writ of error to the Supreme Court of Minnesota, in which it was affirmed; and it was now before this Court on writ of error, the question being whether there had been drawn in question, in that Supreme Court of Minnesota, any authority exercised under the United States.

Page 69 U. S. 105

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