Bronson v. Keokuk. ruled, and his report conformed except as to the above $1,100, and a decree will be entered to the effect that there are justly due to the defendant, on account of the warrants in suit, the aforesaid sums reported by the master, viz: $407.65 and $1,600, and the said $1,100 — making in all, $3,107.65; and that the same be enforced by execution, and, if necessary, by mandamus, in the usual manner; each party to pay his own costs in this suit. LOVE, J. concurs. DECREE ACCORDINGLY. BRONSON V. KEOKUK. ETHRIDGE V. EIGHMEY. 1. The act of June 1, 1872 (17 Stats. at Large, 198, sec. 13), authorizes, in certain cases, the courts of the United States to exercise jurisdiction in equity over the property of absent defendants within the district where the suit is brought; but the act recognizes the superiority of personal over constructive service, and the practice under the act should be such as to secure personal service whenever this is practicable, and to resort to constructive service by publication only when the better mode is not practicable within a reasonable time, and by the exercise of reasonable diligence. 2. The order directing the absent defendant to appear, plead, etc., must be made by the court in term. (Before DILLON, Circuit Judge, at Chambers.) Service by Publication.- Act of June 1, 1872, Construed. THESE are suits in equity to enforce certain equitable rights against the real estate described in the respective bills of complaint. The suits have been commenced since the last term, and subpoenas in chancery returnable to the March rules, 1873, have been issued and served upon certain of the defendants, and returned by the marshal "not found" Bronson v. Keokuk. as to the remaining defendants. An application is made, under section 13 of the act of June 1, 1872 (17 Stats. at Large, 198), at rules, and before the next term after the suit was brought, for an order of publication of the subpœnas in chancery, against the defendants whom the marshal returns as not found within the district. Brown & Dudley, for the complainants. No one appearing for the defendants. DILLON, Circuit Judge.—The act of June 1, 1872 (17 Stats. at Large, 198, section 13), is the first statute enacted by Congress giving to the circuit court the power to make service or acquire jurisdiction for any purpose, by publication; and the right which that statute gives to make service in this manner, is limited to suits in equity to enforce liens or claims against real or personal property within the district. If, in such a suit, any of the defendants are not inhabitants of the district, or are not found within it, or shall not voluntarily appear to the cause, the provision of the statute is, that the court may make an order directing such absent defendant to appear, plead, etc., to the bill, at a certain day, to be fixed by the court in the order itself. This order the statute requires to be made by the court, and hence the present application is premature. We cannot know that the defendants, returned as "not found," may not voluntarily appear at the return term. If they do not, the court, upon proper showing and application, can make the order above mentioned, to appear, plead, etc., and designate the day when this shall be done. Now, the statute provides that this order shall be served upon the absent defendant, if practicable, wherever found. The object of service is to give notice; and the superiority of personal service over constructive service in effecting this object is so manifest as to require no remark, and is recognized by the statute itself. Bronson v. Keokuk. If practicable, says the statute, personal service of the order must be made upon the absent defendant, wherever found; and it is only in cases where such personal service is not practicable, that the statute contemplates that the court shall direct a publication of the order. How is the court to know whether it is practicable to make personal service? This may be ascertained by requiring the complainant, or his attorney or agent, most conversant with the facts, to make a showing on oath as to the residence of absent defendants. If from this it appears that such defendant resides in another district, service upon him may be directed to be made by the marshal of that district; and perhaps, in such a case, the court might make a special order directing or authorizing service by some other officer. If, from the showing, it appears to the satisfaction of the court that the residence of the absent defendant is not known to the complainant, or his agent or attorneys, and cannot, by reasonable diligence, be ascertained (and on this subject the affidavits should state facts, and not mere conclusious), personal service of the order may as well be said not to be practicable, and then the court may direct the order to appear and plead to be published in such manner as it shall deem most likely to give the desired notice. It would appear to be a proper practice for the bill to aver the citizenship and residence of the respective defendants; to let the subpoena issue against all, and if the marshal return some of them not found, and they do not voluntarily appear, the court, on a showing of these and the necessary facts, as before stated, by affidavit, will make the order to appear and plead, and direct the mode of serving the same. The practice, under the act, should be such as to secure personal service in all cases where the residence of the absent defendant is known, or can be ascertained; and to substitute or resort to constructive service by publication only where the better mode is not practicable within a Allen v. Ryerson. reasonable time, and by the exercise of reasonable diligence. APPLICATION DENIED. NOTE. Construction of act of June 1, 1872, see Schwabacker v. Reilly, ante. Hall v. Union Pacific Railroad Co. post. ALLEN v. RYERSON. 1. A cause removed from the state to the federal court, under the act of July 27, 1866, will not be remanded to the state court, merely because the petition for removal does not appear to have been verified. 2. Under the act of July 27, 1866, the non-resident defendant may remove the cause, as to him, where there can be a final determination of the controversy without the presence of a resident co-defendant. 3. In this case it was held that there could be such a final determination. 4. Where a case is made for removal of a cause, under the act of July 27, 1866, the petitioner therefor is not obliged to make an affidavit, such as is required by the act of March 2, 1867. (Before DILLON and LOVE, JJ.) Removal of Causes.-Act of July 27, 1866, Construed. ON motion by plaintiff to remand the cause to the state court. The material facts are as follows: The plaintiff, B. F. Allen, is a citizen of Iowa. The defendant, Joseph T. Ryerson, is a citizen of Illinois. The other defendant is the sheriff of Polk County, Iowa. The Plaintiff brought this suit in one of the state courts of Iowa. The defendants pleaded, and, before the final hearing, the defendant Ryerson filed an application, under the act of Congress of July 27, 1866 (14 Stats. at Large, 306), to have the cause, as to him, removed into the circuit court of the United States for the Allen v. Ryerson. district of Iowa. The application was not verified, but stated the citizenship of the parties, and that the action was to enjoin the defendants; that there could be a final determination of the controversy as to Ryerson without his codefendant, and offered the requisite security for filing copies of pleadings, etc., in the federal court. The state court made an order transferring the cause to the circuit court of the United States, and now motion is made by the plaintiff to remand the cause to the state court, for the reason that the petition for removal was not verified, and also, among other reasons, that the controversy as to Ryerson could not be determined without the presence of the sheriff, his codefendant, and that the application does not state that there is any prejudice or local influence, as required by the act of March 2, 1867. From the bill, it appears that the plaintiff, as a judgment creditor of the "Des Moines Iron Works," had purchased certain real estate belonging to said company, sold on exe cution, and claimed to have taken with the realty certain machinery, as fixtures. The defendant Ryerson, a junior judgment creditor of said company, claiming that the machinery was not fixtures, and did not pass with the realty, ordered an execution upon his judgment, and caused the same to be levied by the sheriff, his co-defendant, upon the machinery, as the property of the Des Moines Iron Works. Plaintiff's bill was to restrain the defendant from selling, or in any way interfering with, said property, and for injury for the seizure of the same, alleges irreparable damages, etc., and asks that the injunction be made perpetual at the hearing. Defendants, in answer, deny the substance of the bill, and the damages, and ask that the injunction be dissolved. John D. Rivers, for the motion. Brown & Dudley, contra. |