King v. Wooten

54 F. 612 | 5th Cir. | 1893

McCOllMIOK, Circuit Judge.

The first line of the brief of counsel for the appellant concedes that, if this is nothing more than a contempt proceeding, it should be dismissed. It ⅛ not disputed that the property in controversy had been taken possession of by the circuit court through its receiver, the appellee, W. H. Wooten. There is some question raised about its being at tbe time leased under an order of that court, hut this we consider wholly immaterial, as such leasing, if it had occurred, did not discharge fte property from the custody of the court. The recognized mode of protecting property in the custody of the court is by treating- as null all attempts to withdraw1- it without leave of the court, whether by color of other legal process or otherwise than by order of the court in possession, and, when necessary, such possession is protected by proceedings to attach and punish for contempt all persons who persist in attempting to disturb the possession of the law. This presents no difficulty on the question of taxes. The judiciary is a co-ordinate department of the government. The government is not at war with itself, Jibr does any embarrassment arise out of the fact that the taxes claimed are state taxes, and the court holding possession is a national court. The national courts, as well as all other departments of the national government, are charged to recognize, observe, and enforce the rights of the states, of which the national government is the ultimate judge and supreme guarantor. In this case the tax lien, like all other liens on the property, would doubtless have received the attention due to it from the court on proper application, and the circuit court could not permit the property w’ithdravra from its possession in the manner attempted by the tax collector. The declaration by the circuit court that the tax sale was void had relation only to the proceeding then before the court, the object of which was to protect the court’s possession of the property while engaged in settling the rights to it or liens on it under the issues joined or to be joined in the suit in which, appellee was appointed receiver. This proceeding was clearly a contempt proceeding, one which, in the very nature of the case, must be summary to be at all effective. It was manifestly not intended to conclude the ultimate rights of the purchaser at the tax sale, but was only to the effect and extent .that he could not in that way dispossess the receiver. We conclude, therefore, that tbe appeal must be dismissed at the cost of the appellant, arid it is so ordered.