12 F. Cas. 833 | N.D. Ill. | 1875
The affidavits upon file in this case show that upon the 14th of April, 1874, Harrison & Co., recovered judgment against the bankrupts, issued execution, and upon the same day placed the execution in the hands of the sheriff with instruction to levy upon the stock of the bankrupts; that the deputy sheriff Galpin, proceeded to tlie store, indorsed the levy upon the writ, placed a custodian in the store, and received the key to the same. Hughes, by his testimony attempts to put a different phase upon these facts, but his view cannot be sustained. The following day the deputy sheriff called at the office of the attorneys of the plaintiffs with reference to the levy. The 'attorneys were anxious to have their judgment satisfied, and yet, on account of the promises of Hughes & Son to pay the debt in a few days, were loth to order the store closed. The deputy sheriff was instructed not to close the store, but to keep a custodian in charge, and not to allow anjr articles to be taken out, except those necessary to finish certain repairs which were being made outside by the bankrupts for their customers. A few days after tlie United States marshal took possession of the store, proceedings in bankruptcy having been instituted. At the time the marshal took possession the custodian happened to be temporarily out of the store. The question for the decision of the court is, was the levy of the deputy sheriff a good one? My reply is that I think it was a good one, and should be sustained, although the store was not closed. The deputy sheriff had indorsed a levy upon his writ, he had the key to the store, was also in possession, and could give every one actual notice, and the custodian informed the marshal that he held possession. The claimants did everything they were bound to do. I held the opinion some years ago that the statute gave a lien as against an assignee in bankruptcy when the execution is placeu in the hands of the sheriff, although I have had occasion since to doubt the soundness of that
In regard to the execution in favor of Cornelius & Co., issued against the bankrupts, the facts seem to be these: They recovered a judgment against the bankrupts about the Kith of March, and placed execution in the hands of a constable, but he made no levy till the day after the sheriff had levied. From these facts I think the Cornelius levy was good as against the assignee, but must beheld subordinate to .the lien of Harrison & Co., as their levy was in fact made first by an officer of another court. The order should therefore be that the assignee pay out of the net proceeds of the goods in his hands: 1. The Harrison execution in full, if there are funds enough to do so. 2. Out of the balance, if any, the Cornelius judgment should be paid in full, if funds are left sufficient to do so.
