The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1897-12-21
+ FAVORS Dexter HORTON
LEDGE HAxFoRD's DECISION IL THE
sAYWARD CASE.
AArmatiye Answers of Defend.
ants STANDARDIZATION Involves
Many Interesting Legal Points.

Judge Hanford flied q highly important
opinion In the Federal court yesterday
IN the case OF Dexter Horton 4 Co against
". p. Sayward. Malcolm MacDougali and
wife, sustaining the demurrer OF the
plaintiffs 10 all Of the affirmative defenses
Ia the defendants answer.
Tho action In the case, Judge Hanford
states was founded upon supersedeas
bond executed By the defendants and laIed
In the original case Of Dexter Horton Sc
Co. Va. w. p. Sayward to stay execution
upon the judgment pending q hearing VI
the cause in the circuit court OF appeals.
This court" gays Judge Hanford- has
heretofore ruled upon a motion in the
ortaiDal case that the obIigors did not by
aid bond become liable for the Judgment,
but only for the costs and damage in
gliding any loss TO the plaintin by dstert-
orution In value Of the property under at
tachment In the original case, and accu-
muiation OF taxes On said property during
the time execution was stayed.
aAs the damages could not be properly
sscertainec In g. proceeding by motion in
this action, alleging In Its complaint that
after the judgment OF this court had been
affirmed by the circuit court OF appeals
and the Issuance of its mandate by the APP
nsllate court, the property heretofore
held under attachment was sold for SIS,
as.i1 under writ Of execution, leaving a
deficiency upon the Judgment exceeding
the amount OF the penalty OF the bond sued
CO herein: that during the tendency OF
the case Ia the appellate court the cost and
expenses OF keeping the attached property
Ia the custody OF the marshal amounted TO
Gk4 and the market value OF the prop
erty deprecated In the sum Of Si0o.o00, and
tafre was depreciation In the value for
HaHt OF repairs 10 an amount exceeding
tsaND and taxes accrued TO the amount OF
gl90, and that the costs taxed III plain
pa faVf N
have not been paid.
agy their answers the defendants NAL
colin MacDougail and Mary MacDousaii.
who executed the soperscdeas bond as
sareties, have set up four affirmative de-
feases. To each, Of these defenses the
{ pxntin demurred."
Ju<ge Hanford gives In detail the def
ci0icies and says:
aThc first three defenses appear TO me to
b without merit. The first questions the
validity Of the Judgment. In the original
action, regarding 1t merely as q personal
judgment against the defendant Sayward.
But the judgment Is in rem against the ate
without having Jurisdiction to render
personal Judgment. q court within this
saate. having superior anu general jufis-
diciion. may render valid Judgment in
an attachment suit which viii be binding
upon nonresident and absent defendants
50 far as to subject property of such de-
fsndants situated within. this state TO the
Of for the payment. OF debts. The liability
Of the defendants Is created by the bond
which they signed. and Is not dependent
INK h' a '' personal liability OF the defendan.
sayward Even though he might not be.
BY force Of the Judgment. liable for any de-
aeiency remaining after. a sale Of the at
ceeds to the payment OF the judgment stu
7 the plaintiff sustained loss by the deter
ioralion or destruction OF the attached
rsts sti.St ~
thereon the obigors are by the terms OF
their bond liable 10 the plaintiff for such
losses"
The second defense Of the defendants
was that the circuit court OF appeals never
acquired Jurisdiction OF said action for the
reason that the writ OF error therein was
not hed in the office OF the clerk Of Judge
Hanford's court. His honor disposes OF
this defense by saying:
III the defendant Sayward failed TO
cause everything to be done necessary to
ads ne Zen case &c n the circuit eour, Of APP
o. error 10 effect. and that failure consti
iasss breach OF the obligation which the
sss,asndants entered into and renders them
As to The fourth defense Judge Hsnford
says:
The ruling upon the motion In the orig
nal case for a deficiency judgment against
me ongers on this bond is certainly no bar
soy we prosecution of this action for the re-
sovsry OF such damages, as by the opinion
,ssnaeIed upon the hearing OF that motion
" court held TO be within the Indemnity
~ me n BOND the plainiiff may be claiming
NO muen. But the complaint Is not for
marrer.
The argument TO sustain the fourth de-
ssasptfior court did have undoubted juris-
usnah OF the original case; that said court
, rov not Be divested OF It's jurisdiction by
ears n a. Sny 'n man cause into the Federal
as ssu ny me statute: that no inquiry Into
sseertainment OF facts not shown by the
ess y a. n,a the time OF removal Of the cause
.ssa vn from one court TO the other cannot
s,s ae pace unti! the record shows that the
hem necessary TO effect the transfer have
A. 49, ~ Mxen 10 accordance with law, and
10 so courts cannot have jurisdiction OF
=, .me cause At the same time, no act
sss sp sop par, YES or proceedings In the Fed
Us jurisdlction.'' e''e~ "a
81 The Rules.
.aase Hanford goes extensively into the
involved IN the fourth defense. quotes
a. sss decisions OF the United States .u.
A .- court, and IN closing says:
q, ~ IRE IS continuous line OF decisions
says Of Marshall To the nresent ,,r nom ,r rne
rules. ~ may fairly dedues the following
A.. me circuit courts OF the United States
MN !sallsdsction 10 decide questions as 70
fror s.s. jurisdiction, In cases removed
sacA smae courts. and the decisions OF
drssnss s - .os by court which has j,Iss-
srk.,s.~o tne parties. II erroneous, is new.
sef assSs o'hding upon the parties until
Or Nv =. VI reversed by an appellate court
TIA an NJ oscer In proper proceeding IN
eu,, cr,e. ooa.t The Judgment OF cdr
reusosss or The United States In A casa
ths rom q state court IL blniirg ,non
Ia scea TO the same sxtent AZ n wn,,is
/. X. Me case had been commenced thsr~-
enss. sorsnsi process. ana after a eircu,,
tacssoc s.Sn case has entertained iurts-
snd ~. IN proceeded to a final judgment.
hie 49,. ase mas been carried to an aprel-
kcc ~ and decision rendered. thara,
lAer ueu's or the CONTROVERSY and
As .anoate has been issued directing
c:rcri, a OF further proc settings In tha
tour q ~ the decision OF the appellate
hrusa .sauihy ard conclusive upor, tina
ha t- snu upon tia circCit court. While
saSrrs uat court NAV not Try t,s ovx,
skirh ~ create Jurisdiction in IT'S favor
sAIIH ,s law has not conferred ant
eoossr S,. parties cannot by their consent
tsshelasss suction upon a court IL ia new
satarslv a,le that after parties hsva va.
ncn n,sc, s.ui'n''ed cause for determine
tssonrh - Is .lsFl's 70 a court az superior.
sen az az .na,ec' Jurisdiction. the soornis.
Ia NE Me cause and the FINAL tuaement
N,n SQUIRT together 10 .sto, tSs $3.50, 80, ~
eAs ,ueny'ng in a couster,,I nroIs,s.,,s
mad Jurisdiction. ,x,e,sf go ,.s -