United States v. Drennen

​ ​quash, and set aside said writ of fieri facias, together with all the proceedings had under and by virtue thereof.

"And your petitioners will ever pray, &c.,

"United States of America,		sct.
District of Arkansas.

"The United States, to the Marshal of the Arkansas District, Greeting:

"Whereas, the United States, on the 12th day of October, A.D. 1844, in our district court of the United States for the district of Arkansas, hath recovered against John Drennen and Elias Rector, administrators of the estate of Wharton Rector, deceased, the sum of seven thousand five hundred and twenty-five dollars and ninety-one cents (say $7,525.91), which were adjudged to them for their damages, with interest on said damages at six per centum per annum from the said 22d day of October, A.D. 1844, till paid, together with the sum of fifty-five dollars and forty-one cents for costs sustained in the suit. You are therefore commanded, that of the goods and chattels and slaves, lands and tenements of the said intestate Wharton Rector, at the time of his death, you cause to be made the damages and interest aforesaid, together with the costs aforesaid, so that you have the same before the clerk of our said court at his office in the city of Little Rock on the first Monday of April next, to be paid over to said plaintiff, and then and there certify how you have executed this writ.

"In testimony whereof, Benjamin Johnson, Esq., judge of our said court, hath caused the seal of said court to be hereto affixed this fourth day of March, A.D. 1845, and the sixty-ninth year of American independence.

"I, Henry M. Rector, United States marshal in and for the ​district of Arkansas, do hereby certify that the foregoing is a true copy of the execution now in my hands in the cause therein mentioned, and that I have levied said execution upon lots 4, 5, 6, 7, 8, 9, 10, 11, and 12, in block or square No. 6; fractional block No. 5, consisting of lots 1, 2, 3, 4, 5, and 6; fractional blocks 12 and 13; blocks No. 8 and 9, fractional blocks 3 and 4, and block No.16,—all in Rector town, Pulaski county, Arkansas.

"And I do further certify, that I have advertised that said parcels of land would be sold, to satisfy said execution, on the 29th day of March, 1845.

"Given under my hand this 13th day of March, 1845.

Written notice was served on S. H. Hempstead, attorney for the United States for the district of Arkansas, on the 13th of March, 1845, that the above petition would be heard before the Hon. Benjamin Johnson, district judge, at chambers, on the 14th of March, 1845; at which time the matter of the petition was argued by George C. Watkins for the petitioners, and S. H. Hempstead, district attorney, for the United States, who admitted the facts stated in the petition to be true. The application was denied on the merits, but no written opinion was delivered at the time. Subsequently the following was written.

OPINION OF THE COURT.—This was an application to quash an execution issued on a judgment obtained by the United States against John Drennen and Elias Rector, administrators of Wharton Rector, deceased, in the district court of Arkansas, on the 22d of October, 1844, and also to quash and set aside all the proceedings under the execution. The judgment substantially pursues the English form, and is against the petitioners in their representative capacity, and its language is that the moneys therein adjudged be "levied of the goods, chattels, slaves, lands, and tenements which were of Wharton Rector at the time of his death, and remaining in their hands to be administered." The execution pursues the judgment, and both are correct as to form and substance. If the marshal levied, ​among other real property, on blocks eight and nine in Rector town, on which there are costly and valuable improvements, as the property of Wharton Rector, deceased, and, it is alleged, has advertised and will proceed to sell the same, unless prevented from doing so.

The application was overruled, on the principal ground that this court had a right to execute its judgments; but no reasons were given at length. As it was a question of interest and considerable difficulty, and time was not then afforded to examine it as fully as it deserved, I have since done so, and am confirmed in the correctness of my decision, and will now proceed to give briefly my reasons for it.

The ground upon which the execution was sought to be quashed was, that in view of the law of the State, none could be issued against administrators; and it was insisted by the counsel for the petitioners, that a judgment against an administrator must be filed in the probate court, according to the laws of Arkansas, classed and satisfied out of the assets of the estate in the regular course of administration, in full if the estate was solvent, and pro rata if insolvent, and that to allow an execution to be issued and levied on the assets of the deceased, and have them sold, would disturb the course of administration, and enable one creditor to obtain an advantage over another, when they should all be on an equal footing.

This is a question of delicacy and difficulty, and may in many instances in its practical results produce conflicts of authority between the federal and State tribunals, always to be avoided if practicable. But the jurisdiction of this court is clear, and cannot be surrendered. By the judiciary act of 1789, the district courts have cognizance of all suits at common law, where the United States sue, and the matter in dispute exclusive of costs, amounts to the sum or value of two hundred dollars. And by the act of 3d March, 1815, the jurisdiction of the district and circuit courts is extended to all suits at common law in which the United States, or any officer thereof, under the authority of an act of congress, shall sue, irrespective of the amount in controversy. 1 Story, Laws U.S. sec. 9, p. 56.

There is no defect in jurisdiction, unless it springs from