34 F. 445 | U.S. Circuit Court for the District of Eastern Missouri | 1888
(orally.) In this case a writ of attachment was sued out by the plaintiff on the 13th of March of the present .year, and the writ was levied upon a slock of merchandise. On the 161h day of 3,larch, the marshal obtained an order of sale pendente lite, and the property has been advertised for sale on the 28th of this month. On the 21st of March, G. Lehman filed an intervening petition in the case, representing that on the 8th day of March II. 0. Eagon made a general assignment for the benefit of creditors to himself as assignee; that on the 9th day of March he took possession of all the property of Eagon, under such assignment, and was proceeding with his duties as assignee, when all of the property covered by the assignment was taken out of his possession by the marshal, under the writ of attachment against Eagon. In view of these facts, the assignee asks to have tho writ of attachment quashed, and the property released to him as assignee for the purpose of administration under the state law concerning assignments.
It is furthermore suggested as a reason why we should release the attached effects that, inasmuch as the marshal has levied on the property, the assignee is deprived of the right to reclaim the property in specie by
.It is furthermore urged that the assignee desires to regain possession of the property for the purposes of the assignment, and that he ought to have the privilege of reclaiming the property by some form of proceeding, and that he should not bo left to his remedy by a suit against the marshal for a wrongful levy. We have given attention to this*ploa, and we must concede that, according to the authorities cited, the property in question cannot be replevied from the marshal under a writ emanating from the state court. It was so hold in Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355, and in several other cases; and that is clearly the law. Rut we conceive that, while it is true that replevin will not lie against the marshal in the courts of the state, yet that the assignee may file an intervening petition in this case, setting up his claim to the properly; and that under such a petition an issue may be framed, and tried here, and his right to tlie property be determined as effectually in this case as by a suit in replevin brought in the state court or in the federal court. In a very late ease decided by the supreme court of the United States, (the ease before referred to of Gumbel v. Pitkin, 8 Sup. Ct. Rep. 379,) wo understand that the right to intervene under the circumstances which now exist, is expressly recognized. When the marshal of tills court, under an execution or attachment, seizes property which is claimed by a third party, it may often happen that the claimant for some reason desires a return of the property in ¿pede, and that his rights will not be fully secured by an action at law against the marshal for an unlawful levy. In all such cases we think he may intervene in the suit in which the attachment or execution issued, and have his right to the property determined by such intervention. Inasmuch as replevin will not lie against the marshal, no remedy is within reach of the claimant to recover the property itself other than the one last suggested, and we think that the remedy by intervening petition filed in the ease is suggested and fully approved in the case last referred to of Gumbel v. Pitkin.
In the present case, therefore, if the assignee desires for any reason to reclaim the property now in the hands of the marshal, and does not desire to prosecute an action against the marshal for a wrongful levy, we will grant him leave within live days from this date to lile an intervening petition, setting up his title to the property; and under such petition we will frame an issue and try his right to the property, and if it is found that he is entitled to it as against the attaching creditor, wo will order the marshal to turn the property over to him in specie, but in the mean time, as the sale of the property is advertised for the 28th instant, wo will direct the marshal to postpone the sale. The motion to quash the attachment, however, is overruled.