U.S. Supreme Court OAKES v. LAKE, 290 U.S. 59 (1933)

[Page 290 U.S. 59, 64]

2. The other ground upon which respondent asked a dismissal of the action by the trial court is that an action of replevin 'will not lie in a United States court against a sheriff to take property from the possession of a state court.' Respondent, in support of that contention, relies on Freeman v. Howe, 24 How. 450, and later cases decided by this court following that decision. It was held in the Freeman Case that replevin would not lie in a state court against a United States marshal who held property seized by him under process issued by a federal court- this for the reason, as stated in Covell v. Heyman, 111 U.S. 176, 179, 4 S. Ct. 355, that such property is in the custody of the law and within the exclusive jurisdiction of the court, from which the process has issued, for the purposes of the writ; that to disturb this possession by process from a state court would be to invade the jurisdiction of the federal court by whose command it is held.

We do not stop to consider whether this rule is applicable to the present case, where the property is in the hands of a sheriff under process issued by a state court, and the action to recover possession, normally within the exclusive jurisdiction of the state courts, is brought in a federal court on the sole ground of diversity of citizenship. [Footnote 1] We find it unnecessary to do so for the reasons now to be stated.

[Page 290 U.S. 59, 66]

Aetna Indemnity Co., 10 Cal.App. 723, 727-729, 103 P. 365.

In Porter v. Davidson (C.C.) 62 F. 626, 629, a similar conclusion was reached under a North Carolina statute. That court, after stating the rule laid down in Freeman v. Howe, supra, Covell v. Heyman, supra, and other cases, held that these decisions went only to the possession of the res, and that the remedy might be pursued against the sheriff for damages in any court. 'The proceedings of the plaintiff in this case by which he took from the possession of the sheriff the chattels levied on was ancillary, not in any way affecting the merits of the original case. That can go on without conflicting with any of the cases quoted above.'

The Court of Appeals did not consider the question whether petitioner had made out a case of actual possession in Oregon. Nor can we say from the very general words of the judge in granting respondent's motion and in discharging the jury that this precise question of fact was passed upon by the trial court. We, therefore, do not consider it, but leave it to be disposed of in the further proceedings which must be had in the District Court.

Judgments reversed, and cause remanded to the District Court for further proceedings in conformity with this opinion. Footnotes

Footnote 1 Compare Wise v. Jefferis (C.C.A.) 51 F. 641; Gilman v. Perkins (C.C .) 7 F. 887; Wood v. Weimar, .