20 F. 426 | U.S. Circuit Court for the District of Eastern Louisiana | 1884
These causes are submitted together with reference to tl io distribution of the proceeds of property seized under atlaeh-men is. The questions are as to the claim of a creditor under an attach ment from the stale court, and as to the order of priority of creditor! obtaining attachments in this court. Various creditors had obts ined attachments on Sunday in this court, which were also levied on i lUiiday. The same and other creditors obtained attachments in sovc ral suits, also in this court, some early Monday morning, shortly afte' midnight, and others between 8 and 10 o’clock a. m., which wer s also levied upon the same property. The intervenor had obtain id his writ from the state court on Saturday. Early Monday moi ring, shortly after midnight, and while the marshal was holding pos! ession of the property under the Sunday writs alone, the sheriff can e to the store, where the property was situated, for the purpose of g irving the writ, and demanded entrance, which the marshal refuse d. The sheriff placed his keepers around the building and guarded the same continuously down to the time of the sale, and served notice of s azure and subsequently process of garnishment upon the deputy ma? shal in charge of the store, who had executed the processes of attachment from this court. The marshal preserved his possession wit! iout interruption from the moment of the seizure down to the tim > lie sold the property under the Monday writs, the Sunday writs having been abandoned. The property seized was the wines and bra idies, etc., the stock of a wholesale liquor store.
1, As to the effect of what was done by the sheriff. Nothing is before the court except the proceeds of a sale. They, and they alone, can have an award who show title; and, since all claim under process aga inst the property of a common debtor, those alone who show a levy of t le process upon the property; for, in this state, the issuance and exii tence of the process create no lien. It disposes of this part of the case to say that the sheriff made no seizure — no caption of the property . Its possession was withheld from him, and access to it was for-cibl y denied him. Whether this was done under color of a good or bad wri,, or without any writ, all seizure was prevented, and no lien was effe ;ted. This would end the case of the intervenor, as to any privi-legf upon the fund, unless he can maintain that the marshal, holding under color of a writ from this court, can be made to hold also uní er a writ from the state court subsequently served by the garnish-me it process. The authorities for this proposition cited are Patterson v. Stephenson, unreported, decided by the supreme court of Mis
2. As to the order of priority of the creditors who attached under the writs from this court, no right is claimed and no right could have been acquired under the Sunday writs or seizures. The statute prohibits (Civ. Pr. art. 207) the institution of suits and all judicial proceedings on Sunday. The question, then, is as to the priority of the attachments which were issued on Monday; i. e., after 12 o’clock on .Monday morning. The statute makes the priority of attachments upon the same property to depend upon seizure. Civ. Pr. art. 723; Scholefield v. Bradlee, 8 Mart. (O. S.) 510; Hepp v. Glover, 15 La. 461; Hermon v. Juge, 6 La. Ann. 768. Priority is to be determined by noticing, when necessary, fractions of the day. Tufts v. Carradine, 3 La. Ann. 430. The property was already in the possession of the marshal, and there is established a definite order in which the writs came into his hands. It is contended that, therefore, this order establishes their rank as liens upon the property. When property is already in the hands of an officer in order to effect a seizure, it needs no overt act beyond his return upon the latter process in order to effect a seizure. Turner v. Austin, 16 Mass. 181; Drake, Attachm. § 269. But it must appear in some way that the officer commenced to hold under the later processes. The mere receipt of process does not effect a levy. In these eases the deputy marshal, who already held by keepers the property, received at the clerk’s office some half dozen writs in the order of the number of the causes upon the docket, and then proceeded to give effect to the processes by proceeding with them and making new levies. He probably did this because of fears as to the validity of his possession under the Sunday writs as the basis of subsequent seizures. Whatever was his
I tJ link this manner and order of his levying these writs should contri 1. In Turner v. Austin the court say that when the officer has s weral writs in his hands at the same time he has a power as to tin order of seizure which is liable to abuse. Nevertheless, they maim ain that the time of the actual levy or commencement to hold deter; nines. Of course, if the officer wrongfully levied, or omitted to levy,1 >r wrongfully postponed the levy, of one writ to that of another, he wc aid render himself liable; but in this case, since the levies were undei writs simultaneously held, though not exactly simultaneously recen ed, upon property already inthe officer’s possession, but, notwith-stand iig this fact, were independently and additionally made, it seems to me the question in dispute must bo settled by the evidence furnished by th' i returns. The returns indicate the order in which he levied or cornu'enced to hold under the respective writs. This would, then, settle the order of priority of the several writs of attachment, unless the i osition taken by the counsel in the case of H. Weiller & Co. is corre it. He contends that while his writ was last received and last leviei that it is entitled to precedence, and indeed to be counted the sole, ralid writ, because the plaintiffs in the earlier writs had used Bund i-y suits and Sunday processes to detain the property until the Mom ay writs could be obtained and levied, and that of the writs not so ta nted his is the first. As a proposition of law it is indisputable that vlien a plaintiff has unlawfully obtained possession of a debtor’s prop rty for the purpose of levying process upon it, such levy is wron ;ful, and cannot be upheld as against any one who is so situated that he can urge its invalidity. Wells v. Gurney, 8 Barn. & C. 769; Ilsley v. Nichols, 12 Pick. 270; and Closson v. Morrison, 47 N. H. 482. If this was a suit brought by the debtor against the officeor if the creditor, who attempted to attach through the sheriff, had >een able to acquire any lien upon the property sought to be read ed, then the objection could be urged. But it cannot avail, as pres< nted by this creditor; for either the Sunday plaintiffs did not detain unlawfully, and did not thereby obtain a week-day seizure, or ol ;o the party here urging the objection is endeavoring equally to profi by the detention. It is as if a plaintiff had brought property with n a jurisdiction and then seized, and subsequently a second plaii tiff had there obtained and levied process, and sought to establish iriority by urging against the first plaintiff the wrongful impor-tatio i. The answer would be that the illegality furnished the oppor-tunil y for both seizures, and neither plaintiff could urge it against the othe ■. Until some party whose title is independent of the detention pres- nts a claim the court can be governed only by the order in which
