265 F. 389 | S.D. Miss. | 1919
This case has been fully covered in the briefs and certificate of the referee, and the only new, or additional, view which presents itself to the court is with reference to the effect of the repeal of section 3 of the act of 1888, as amended by the act of 1895. Section 3 was repealed by the Act of August 23, 1916, the repealing act to become effective on January 1, 1917. 39 Stat. at Large, 531.
It seems'to. be conceded by counsel for the judgment creditor that, under the act of 1888, he has no lien on any property outside of the county where the judgment was rendered; hut it is claimed that in that county, to wit, Hinds county, the enrollment of the judgment in thé office of the clerk of the United States District Court was sufficient to create a lien on all property of the defendant situated within that county. This contention fenders meaningless the Act of August 23, 1916, repealing section 3 of the Act of August 1, 1888; as amended by the Act of March 2, 1895. The courts must give effect to section 3, while in force, and attribute to Congress a substantial reason or motive for repealing the same. The said section 3. of the act of 1888 is as follows;
“Nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any state office within the same county or parish in the state of Louisiana in which the judgment * * * is rendered, in order that such judgment or decree may be a lien on any property within such county.” 25 Stat. at Large, 357.
By act approved March 2, 1895 (chapter 180, 28 Stat. at Large, page 813), the said section 3 was amended by an addition thereto which made its effectiveness conditioned upon the clerk of the United States court being required by law to have a permanent office and a judgment record open at all times for public inspection in the county or parish where the judgment or decree was rendered. As amended, section 3 reads as follows:
“That nothing herein shall be construed to require the docketing of a judgment or decree of a United States court, or the filing of a transcript thereof, in any state office within the same county or the .same parish in the state of Louisiana in which the judgment or decree is rendered, in order that such judgment or decree may be a lien on any property within such county, if the clerk of the United States court be required by law to have a permanent office and a judgment record open at all times for public inspection in such county or parish.” 28 Stat. at Large, 814.
The Act of August 23, 1916, chapter 397, 39 Stat. at Large, 531, repealing section 3, is as follows:
“Section I.- [Docketing in State Court * * * Repeal of Statute.] That an act approved March second, eighteen hundred and ninety-five, entitled ‘An act to amend section tnree of an act entitled “An act to regulate the liens of judgments and decrees of the courts of the United States,” approved August first, eighteen hundred and eighty-eight,’ be, and the same is hereby, repealed.
“Sec. 2. [Act When Effective.] That this' act shall take effect on and after January first, nineteen hundred and seventeen.”
It seems very clear that, under section 3 of the act of 1888, it was not necessary to enroll the federal court judgment in the state cir-.
I am therefore of tile opinion that the judgment creditor has no lien entitling him to priority of payment in bankruptcy and the decision of the referee should be affirmed. It is so ordered.
