135 F. 736 | 2d Cir. | 1905
This is a petition to review an order of the District Court in bankruptcy requiring the sheriff of the county of New York to surrender property in his custody seized and held by him under a warrant of attachment issued by one of the state courts in an action brought by a creditor against the alleged bankrupt. The attachment was levied May 6, 1904. May 9, 1904, creditors of the alleged bankrupt filed a petition to have him adjudicated a bankrupt. Shortly thereafter the court, upon the application of the petitioning creditors, required the sheriff to show cause why he should not turn over the property seized by him to a receiver who had in the meantime been appointed in the bankruptcy proceedings. The sheriff appeared, insisted that the application should be made to the state court, and alleged that he had a lien upon the property for poundage. Thereupon the court made the order now under review.
The question whether the sheriff was entitled to the poundage claimed is subordinate to the more important one whether the court should have made the order by which before there had been any adjudication in bankruptcy the sheriff was required to assume the responsibility of releasing his levy upon the property. The attachment was process which the sheriff was bound to enforce for the benefit of the plaintiff in the action, and, though it would be dissolved in the event of an adjudication of bankruptcy, it was his right and his duty to retain the property until the attachment should be dissolved, and even then until by competent authority he should be required to surrender it. Representing the party who had obtained the attachment, and as an-officer whose duty it was to hold and dispose of the property in obedience to the process, he was in possession under a title paramount and adverse to that of the alleged bankrupt; and he asserted his adverse title, upon the application to require him to surrender the property, by insisting that the application should be made to the court that had issued the process, and by setting up his own lien for poundage.
The authority for the jurisdiction which was exercised by the court below is found in those provisions of the bankrupt act which empower courts of bankruptcy, after the filing of a petition in bankruptcy, and-in case it is necessary for the’preservation of the property of the bank
The sheriff having asserted an adverse claim, the application should' have been denied, and without passing upon the merits of his claim for poundage.
It is accordingly so ordered, with costs of this review.
I concur in the opinion reversing the order of the District Judge. The trustee relies mainly on a prior decision of this court in Re Kenney, 105 Fed. 897, 45 C. C. A. 113, which was affirmed by the Supreme Court under the title Clarke v. Larremore, 188 U. S. 486, 23 Sup. Ct. 363, 47 L. Ed. 555. The argument in the Kenney Case before this court was without briefs, and the precise point raised here is not discussed in the opinion. It was taken by certiorari to the Supreme Court, but in none of the four briefs there filed (two by each side) is there any discussion as to the jurisdiction of a bankruptcy court to make a summary order directing the transfer of property in the possession of a person holding an adverse claim.