78 Vt. 89 | Vt. | 1905
On the 22d day of April, 1899, Henry S. Mackay was adjudged a bankrupt under the United States bankruptcy laws, before the District Court of the United
Since there was no written transfer of the stock in question, there was no pledge either at common law or under the statute, and the question of notice to the corporation is immaterial. It follows that prior to the filing of the petition in the proceedings in bankruptcy the two hundred twenty .shares of stock might have been levied upon and sold under judicial process against Mackay; and under the provisions of the bankrupt law, when the plaintiff was appointed trustee the title to this stock vested in him by relation at the date of the commencement of the proceedings. Bankruptcy Act of 1898, § 70; In re Appel, 103 Fed. 931, 4 Am. B. R. 722.
Some months after the title to the property was so vested in the trustee, the defendant sued'out his writ of attachment
Since in that action there was no service of process upon the bankrupt and no appearance by him, the case was in its essential nature a proceeding in rem the only effect of which could be to subject the property attached to the payment of the debt found due to the plaintiff on which the action was founded. As a personal judgment, the judgment rendered was void. Indeed when regularly obtained, such a judgment is without any binding force except as to the property attached. Woodruff v. Taylor, 20 Vt. 65; National Bank v. Peabody & Co. 55 Vt. 492.
Since the stock in question, as a part of the bankrupt estate was in the custody of the Federal Court, it could not be taken out of that custody by any process from a state court. Property cannot be constructively, any more than actually, in two places at the same time. To give a court jurisdiction in a proceeding in rem, there must be a valid seizure and an actual control pf the res under the process therefrom. The attempt to seize the property by attachment was a nullity and gave the state court no jurisdiction over it. In Stoughton v. Mott, 13 Vt. 175, the action was trespass for taking and cartying away the plaintiff’s sloop, and a quantity of military stores, arms, &c. After a trial was had on the general issue resulting in .a verdict for the plaintiff, the suit was dismissed on defendant's motion for want of jurisdiction, and on exception thereto, the case was heard in this Court. It appeared that the defendant, an officer of the United States, seized and was holding the sloop and arms and munitions of war under an Act of Congress, as intended to be employed by the owners thereof in carrying on military operations within the Province of
It follows that the state court acquired no jurisdiction of the res in the former case and that the attempted attachment of the property and all subsequent proceedings in that action are void. This being so, the property is not affected thereby, and there is no necessity for this action of audita querela to vacate the judgment and execution.
Judgment reversed and judgment for defendant to recover his costs.