40 F. 313 | C.C.N.D. Fla. | 1889
(orally.) I think it would be error and improper for this court to permit a recovery of the property sued for in the replevin suit by the plaintiffs, (even if tho rightful owners,) if the property was thereby taken from tbe possession of tbe sheriff, who held it by virtue of an execution issued upon a judgment of tbe state court. The possession of the property by the sheriff by virtue of a levy under an execution issued by the state court is in itself a complete defense to the action of replevin, without regard to the rightful ownership. Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355. According to the allegations of the bill, the property was in the custody of the law, and within the exclusive jurisdiction of the state court from which the process issued, for the purposes of the writ, and the possession of the sheriff should not be disturbed by process from this court. But how does this court fake cognizance of those facts, and administer the appropriate remedy in the premises? Not by an original bill filed by the sheriff on the equity side of the court to restrain the suit in replevin of the Filer & Stowell Company against Morgan et al., but by a petition, or summary motion, or, as I think more appropriately, by a proceeding in the nature of an interpleader. I cannot consider this bill (filed on the equity side of the court by the sheriff against tho Filer & Stowell Company) as an original bill in equity, and
