171 F. 897 | S.D.N.Y. | 1909
(after stating the facts as above). In so far as there are any wages or salary due to the bankrupt at the date Of the filing' of the petition, these belong to the trustee, provided the bankrupt has made no claim for exemption; and it is quite clear that the judgment creditor must be enjoined from collecting any part of those wages. So far as the assignees are concerned, I have no jurisdiction Over them in this case, and the validity of their assignment must be determined by plenary suit. If the bankrupt has claimed an exemption of wages actually due, I see no reason for the trustee to claim a stay, for in no event can they become a part of the estate. A different question arises as to whether the' bankrupt is himself entitled to retain his wages earned. There is no difference between earned wages, for which he claims an exemption, and future wages, to- the date of the petition, because neither of these can by any possibility go to the trustee.
The question is, therefore, squarely presented as to whether the bankrupt should be protected from garnishment, complete before petition filed, levied as execution upon exempt property. If the garnishment be no more than an attachment, and if the attachment be valid, it is no answer to say that the debt will be discharged. Hill v. Harding, 130 U. S. 699, 9 Sup. Ct. 725, 32 L. Ed. 1083; Pickens v. Roy, 187 U. S. 177, 23 Sup. Ct. 78, 47 L. Ed. 128. The point is settled by Metcalf v. Barker, 187 U. S. 165, 23 Sup. Ct. 67, 47 L. Ed. 122, for there can be no distinction in the fact that the garnishment had there gone to decree. The whole rationale of that case was that the “lien” began when the creditor’s bill was filed. That bill was as much' “equitable execution” as this, and the creditor’s rights, being acquired before bankruptcy and not invalidated by the act, simply remain in statu quo. The discharge, when it comes, will not, as said in Re Beals (D. C.) 116 Fed. 530, make the “judgment to be a nullity.” A discharge is a bar which may be waived. But, regardless of metaphysics, the lien does not require the continued “existence” of the judgment. It is enough that the terms of the judgment circumscribe the quantity of the garnishor’s interest. His property is measured by the sum there adjudged due. It is not necessary to determine whether the judgment qua judgment still endures, as it were, in limbo.
