48 Neb. 414 | Neb. | 1896
This was an action by Eva M. Prugb against the Portsmouth Savings Bank and Brad D. Slaughter, United States marshal for the district of Nebraska, to restrain the defendants from selling'certain land under an execution issued from the United States circuit court. The plaintiff is a married woman, and prior to the 23d day of June, 1892, was the owner of a certain lot in the city of Omaha, which was occupied by herself and family as a homestead. On that day she sold this land for $2,500, $1,450 of which was applied to discharge a mortgage on the premises. August 13, 1892, she purchased the lot here in controversy, paying therefor $500 out of the proceeds of the former homestead. August 23,1892, an execution issued from the United States circuit court on a •judgment of the Portsmouth Savings Bank against Mrs. Prugh was, by the defendant Slaughter, the United States marshal, levied on this lot. It was then vacant, but the plaintiff thereafter erected a cottage thereon of the value of about $800, which was occupied by the family as a home. The marshal being about to sell this lot under the execution, this action was brought in the district court of Douglas county to enjoin the plaintiff in
The case was tried under a stipulation of facts substantially as above set forth. Under these facts there can be no doubt that the land in question was exempt as a homestead, from execution and sale in satisfaction of the judgment. Section 16, chapter 86, Compiled Statutes, provides that if the homestead be conveyed the proceeds of the sale, not exceeding the amount of the homestead exemption, shall be entitled for the period of six months thereafter to the same protection against legal process which the law gives to the homestead, and that the sale and disposition of one homestead shall not be held to prevent the selection or purchase of another. It has also been settled that where a homestead has been incumbered, the amount of the incumbrance is not to be deducted from the $2,000 homestead exemption, but that the claimant is entitled to this exemption over and above the incumbrance. (Hoy v. Anderson, 39 Neb., 386.) It follows, therefore, that the proceeds of the sale of the former homestead, having been within six months from the sale invested in the premises in controversy, after discharging the mortgage indebtedness, the homestead exemption continued in the present land. An injunction should therefore have been allowed restraining the present sale of the land levied upon, unless the court was without authority to interfere with the proceedings being taken to enforce the judgment of the federal court. (Quigley v. McEvony, 41 Neb., 73; Corey v. Schuster, 44 Neb., 269.)
We think there can be no doubt that the court was without authority to enjoin the marshal from proceeding. Where goods have been seized by a federal court under a writ of attachment, a claimant of the property may not replevy them from the marshal in the state court. (Freeman v. Howe, 24 How. [U. S.], 450; Covell v. Heyman, 111 U. S., 176; Summers v. White, 71 Fed. Rep.,
It is urged that tbe sale contemplated was not a judicial sale, that tbe case bad proceeded to judgment, and that tbe marshal was acting beyond tbe authority of bis. writ in levying upon tbe homestead. To this argument, however, Riggs v. Johnson County, supra, affords a complete answer. In that case Mr. Justice Clifford said: “Express determination of this court is that tbe jurisdiction of a court is not exhausted by tbe rendition of tbe judgment, but continues until that judgment shall be satisfied. * * * Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else tbe judicial power would be incomplete and entirely inadequate to tbe purposes for which it was conferred by tbe constitution.” It was accordingly held that tbe jurisdiction obtained by tbe federal court in tbe original action continued for tbe purpose not merely of an execution to enforce tbe judgment, but for tbe purpose of an independent action for a mandamus to compel tbe levy of a tax to pay tbe judgment; and that this, jurisdiction was, by virtue of tbe original action, prior to that of tbe state court in an injunction case to restrain tbe enforcement of tbe judgment, begun before tbe mandamus suit.
Judgment adeirmed.