140 F. 381 | S.D. Ala. | 1904
The court which obtains possession of property or of a controversy by priority in the service of its process acquires exclusive jurisdiction for all the purposes of a complete adjudication. B. & O. R. R. Co. v. Wabash R. Co., 119 Fed. 678, 57 C. C. A. 322. The well-settled doctrine is that when a court, in the progress of a suit properly pending before it, takes possession of property under an attachment or by any other mesne or final process, its jurisdiction over the property for the time being becomes exclusive, and no other court can lawfully interfere with the possession so acquired. Merritt v. Barge Co., 79 Fed. 228, 24 C. C. A. 530, and authorities therein cited. One court cannot take property from the custody of another court by any process, for this would produce a conflict extremely embarrassing to the administration of justice. Freeman v. Howe, 24 How. (U. S.) 450, 16 L. Ed. 749; Senior v. Pierce (C. C.) 31 Fed. 625; Heidritter v. Elizabeth Oil-Cloth Co., 112 U. S. 294, 5 Sup. Ct. 135, 28 L. Ed. 729. It is a principle of right and law, and therefore of necessity. It leaves, nothing to discretion or mere convenience. Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355, 28 L. Ed. 390. Property seized by the sheriff under the process of attachment from the state court, and while in the
The sole question here is whether the property, the timber, involved in this controversy was in the prior possession of the state court under color of legal process; whether at the time of the seizure of said timber by the marshal under the process from this court the state court had the possession and control of the timber under the writ of attachment which issued from that court. Unless there was a valid levy of the attachment, the state court never acquired the possession or actual control of the timber. To constitute a levy on personal property, the officer must not only have a view of the property, but must assume dominion over it. Goode v. Longmire, 35 Ala. 668, 76 Am. Dec. 309 ; Abrams v. Johnson, 65 Ala. 465; Hamilton v. Maxwell, 119 Ala. 23, 24 South 769. And, while a summons of a garnishee may constitute a levy of an attachment, the service of garnishment process upon persons in possession of specific chattels creates no lien thereon, in the absence of an actual levy, and does not constitute an act of possession or dominion over such chattels. Maish v. Bird (C. C.) 48 Fed. 607. The undisputed evidence shows that the deputy sheriff, who had the attachment in hand for execution, made no valid levy on the timber. It was in a raft moored in a public boom, of which Gaines Fountain was the proprietor or manager. The deputy sheriff, in company with said Fountain, approached the raft in a boat, and came within some 60 feet of it, when, it being pointed out by Fountain among other rafts, the deputy sheriff viewed it. He did not go on it, or then ascertain the exact number of pieces of timber there were in the raft; but he informed Fountain that he had the attachment, and engaged Fountain to count the exact number of pieces of timber there were in the raft and to report .the same to him, which was subsequently done. The counsel for petitioner- does not claim that this action of the deputy sheriff constituted a valid levy of the attachment; but his contention is that there was an agreement between the deputy sheriff and Fountain that the latter should take charge of the raft of timber for the sheriff and should hold it as his bailee'. This is denied by Fountain. It being conceded that there was no valid levy of the attachment, unless there was an agreement between the deputy sheriff and Fountain that the latter was to assume dominion over the timber and hold possession of it for the sheriff as his bailee or agent, the burden is on the petitioner to show such an agreement. The evidence on the subject is conflicting.
. I am not satisfied from all the evidence that there was any distinct agreement between the parties such as is claimed by the petitioner. There was undoubtedly discussion between the parties about it. Fountain demanded that in addition to his regular boom charges he should be paid $1.50 a day for taking charge of and holding the raft of timber
The petition is therefore denied.