The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-08-23

yacate the appointment OF the
OF the Northern Pacific railroad
Power OF Removal Asserted.
Mr.. Preston said: This court appoint
ed the receivers. and this court mas power
TO remove them; but we will not discuss
that power until IL has been questioned oy
the other side. IL has been sad that the
court ought not 10 exercise that power Ior
the property in Washington"
After the statement in preface, Mr.. Pres
ton discussed the question OF jurisdiction
He said:
1T Is conceded that at the time OF the
appointment of the receivers property OF
the railroad lay in the eastern district OF
Wisconsin The statement there made mis-
led the court as 20 the fact. AT the time
Of the foreclosure bill. the only specific
property was $500 in cash and rolling
stock. rails and fuel which IL seems had
not been taken out of the district accord
ing to the orders of the court. The aftida-
Wit OF Board states that the rolling stock
at the time of filing the bill was in tran
sit. The question of jurisdiction comes
first in this light: Suppose there was no
property there. The Northern Pacific hav-
ing appeared and waived that point. the
court there having personal jurisdiction.
is IL the law that personal jurisdiction
gives 10 the court the right TO act upon
an immovable res situated in a foreign
jurisdiction? Ii il should be held yes, that
settles the question OF jurisdiction: II no,
is there such a state of facts in the case
as will take ii without the rule? The ques-
ton is presented as to whether the Mil
waukee court having jurisdiction of a car
or a train OF cars. of a rail or a ton of
rails, that fact gives to IL the right 10
take jurisdiction of the railroad; but this
court. also having jurisdiction. ought it
TO refrain on the ground of comfy from
making a n order respecting the receivers?
We maintain that the jurisdiction over
ton of rails or sum of money, while it
gave to the court a right to foreclose on
them, does not give 70 that court the right
to- foreelose on the railroad. The rule ~
comfy. We maintain. is of necessity, not
| courtesy. IL is the duty OF this court 10
exercise its jurisdiction. If asked 10 do
So"
The discussion at this point turned 10
the appointment of the receivers, and
Judge Gilbert made inquiries as to the ex-
act time the receivers were named by the
various courts Mr.. Dolph spoke IN ex-
| PLANTATION. and Mr.. Petit also took the
floor for a few seconds. The attorneys
for the company maintaining that from
the records the appointments were shown
| TO have been made almost simultaneously
| in some of the courts.
Personal and Real Property.
On continuing his argument Mr. Pres
| ton said that the proposition that court
! of equity having jurisdiction Of the per-
son had no jurisdiction TO foreclose on
| lands was supported by many authorities,
and was weakened only by a few. He cited
many decisions, including one by Chief
! Justice Marshall, and quoted from Pom
| eroy. The principle involved was that
where the subject matter is local and the
| action brought directly affects the prop
| erty, the court foreign to the land has no
| Jurisdiction. Mr.. Preston supposed the
case Of car of shingles sent from Wash
| iggton into Florida. there passing into the
| Jurisdiction eff another court. If such a
| car should be made subject to foreclosure
| proceedings. the jurisdiction of the court
| could not extend to the real property of
| the road in this state. After celebrating
on the Illustration and the application Of
equity to the person, Mr.. Preston said:
| 1T seems to me that a statement Of the
| proposition carries with il It's own refuta-
ton" Counsel ended his argument few
minutes after u o'clock, and court was
adjourned until 80 p. m
Bum Defends the Jurisdiction.
Mr.. Bum addressed the court at the
opening of the afternoon session, and
spoke for about an hour and three-quar-
ters. He held in his hand a brief pre-
pared by himself and ex-senator Spooner,
! and adhered closely 10 the printed pages.
| He narrated the history of the case in all
| the courts. especially in the court for the
| eastern district of Wisconsin, saying that
| with a clear and concise statement of the
| facts. already familiar TO the public mind,
| he felt that the case itself was more than
| two-thirds argued Thence he passed TO
/ the motion to GUST referring 10 il as col
| lateral attack based only upon ex
| parte affidavit of Brayton Ives that there
! was no property in the eastern district of
| Wisconsin. Passing from his statement of
| facts he submitted to the court the fol-
! lowing propositions of law;
Il. The jurisdiction Of the circuit court
for the eastern district of Wisconsin can
! not he collaterally attacked in this man
| ner and this court should not even con-
slider the allegation OF want of jurisdic-
! ton.
/ -. But if the matter can be inquired
/ into here. the record before your honor
shows clear jurisdiction in said court in
| Wisconsin.
| % If the Jurisdiction of that court he
/ either presumed, or found on examination
| 10 exist familiar and settled rules OF com
| ity should lead your honors 10 remit the
| petitioner 10 that court there to object TO
| it's jurisdiction. or prosecute its charges Of
| misconduct against the receivers"
! The jurisdiction OF Federal courts"
| said Mr.. Bum. quoting the rule in Dow
| ell vs.. Applegate. I52 L. s, cannot be coll
! literally impeached even where the rec
| ord does not allege or show any jur.sdjc-
| tlonal facts; while in this case we need
! 20 so far only as 20 say that where the
! turisdictloral averments are made in The
/ hill filed and admitted Of record by a
! party. such party cannot he heard 70 deny
/ tho jurisdiction IN another court where the
| same matter comes in controversy.
| The proposition that the circuit court
! IN the eastern district or Wisconsin had
/ clear Jurisdiction can be affirmed and sup
| ported on the ground that a part OF the
/ tangible property subject 10 the mortgages
! had an actual situs within the territorial
( jurisdiction Of that court on October Is.
I lH'. when the foreclosure bill was fled
/ and the receivers appointed. The lien on
the atter-aoCuired properties arose as fast
! as they were acquired. and was made con-
summate End hXed by a seizure through
! the appointment Of receivers at the suit
{ of the trustee under the mortgage. The
/ jurisdiction was beyond dispute.
I What Comfy Requires.
/ THAT the court should upon settled
I rules Of comfy remit This case TO the CIR
( cEi' court for the eastern district Of VS.
I corsin. there - De made subject 10 obicc-
/ ti7n - - Jurisdiction and charges
! Of miscondur; OF the rccc.v-
ers Is based on settled law. and
( upon something more than polteness
I and comfy. that 3; grows out u The ne
cess ties OF the ease has heen so lately and
So forcitly stated As 10 leave nothing Un-
+ sad. No case could be presented more
strongly calling for the application Of the
rale than The present for wh.ie iu most
F 81 t1e cases whore the question arises She
application is made by large class OF the
creditors Of me defendant whose eqult
are IN cond-ct with other creditors. N q 81