60 F. 784 | U.S. Circuit Court for the District of Montana | 1893
This is a suit in equity brought by complainant for himself, and in behalf of all other creditors of Isaac Greenhood and Ferdinand Bohm. The bill sets forth that •the complainant is a creditor of said Greenhood & Bohm; that on the 12th day of February, 1892, the said Greenhood & Bohm assigned all their property to Max Kahn for the benefit of their creditors; that complainant was made a preferred creditor, with others, to the sum of $45,000; that said Max Kahn accepted said trust, and entered upon the duties thereof, and took possession of all of said property; that the defendants the Merchants’ National Bank, L. H. Hershfield, and Aaron Hershfield had notice of said assignment, and that on the 13th day of February, 1892, the said defendants, the Merchants’ National Bank of Helena, L. H. Hershfield, Aaron Hershfield, and one Charles M. Jefferis, with force and arms, broke into the store building formerly occupied by the' said Greenhood & Bohm, and which said store and building were in the actual possession of the said assignee at the time, and forcibly took possession, and seized all of the goods and chattels so assigned to said Max Kahn, and deprived him of the possession of the same; that subsequently said Merchants’ National
The first point presented is that this suit cannot he maintained because the same subject-matter is involved in a suit in the district court of the first judicial district of Montana. This point is not well taken. The courts of Montana pertain to one government, and this court to another. It is a settled rule that a suit in a court in one sovereignty is no bar to a suit in another sovereignty, even when the parties are the same. There is no claim that the plaintiff, Rejall, is a party to the proceedings in the state court; but, if he is, it makes no difference. This view is fully sustained by the case of Gordon v. Gilfoil, 99 U. S. 168. Other federal authorities might be cited to the same effect, but this is controlling.
The second point is to the effect that, in a suit pending in the above court of the state of Montana, the property which is the subject of the action in this case is in the hands of a receiver appointed by said state court. It appears that the property, the subject-matter of the action, has passed out of the hands of said Jefferis, as sheriff, into the hands of a receiver. Courts of the federal government will not disturb the possession of property in the hands of a state officer, taken pursuant to a writ or order of the state court. But when there is no purpose to disturb this possession, or the officer has parted with the possession, of the same, there is no occasion for barring an action in a state court. In the case of Buck v. Colbath, 3 Wall. 335, it was held that when a United States marshal had levied upon certain property as that of the defendant in an action in a federal court by virtue of a writ of attachment, the action in a federal court was no bar to an action in the state court against the marshal by a person not a party to -the action in which the writ of attachment issued, and claiming ownership of the property seized thereby, against the marshal, for trespass. In that case the court said:
“It is only while the property is in the possession of the court, either actually or constructively, that the court is bound or professes to protect that possession from other courts. Whenever the litigation is ended, or the possession of the officer or court is discharged, other courts are at liberty to deal with it according to the rights of the parties before them, whether their rights require them to take possession of the property or not.”
In the attachment suit, judgment was obtained. Another suit began, in which a receiver was appointed, and the possession of the property taken by him. The defendant Jefferis no longer had possession of the property. But it is urged that, because the property is in the hands of a receiver, therefore this action cannot be maintained. This point was considered in the case of Hickox v. Elliott, 27 Fed. 830, usually c&lled the “Holladay Case,” and it was there held that the fact that the property in the hands of a receiver*, concerning which the action was maintained in another suit, would not bar the action. And when we consider the reason of the rule which would forbid a court entertaining a suit for property in the custody of another court, namely, to prevent a conflict of
As to the plea of the defendant William Muth, I think it must be sustained. He is the receiver of the property, made such by the state court. The suit in this case would involve a determination as to his right to that possession, and might ask him to account for the same. Ho permission was obtained of the state court to bring this suit. Under such a state of facts, it cannot be maintained. In the case of Barton v. Barbour, 104 U. S. 126, a suit was commenced against a receiver in a court of the District of Columbia. He had been appointed such receiver by a court of the state of Virginia. Ho permission to sue the receiver had been obtained from the court that appointed him. The supreme court-held that the court in the District of Columbia had no jurisdiction to entertain the suit. Other authorities might be cited to the same effect.
In this case an argument was presented by Gov. Carpenter, attorney for defendants, to the effect that the bill of complaint showed upon its face that the plaintiff was not entitled to the relief demanded. There was no objection to the point being presented. The contention is that, as the bill shows that plaintiff was a preferred creditor, to the extent of f45,000, in the assignment made by Greenhood & Bohm to Max Kahn, and also that the said Greenhood & Bohm owed him but $42,035.83, it was void as to creditors; but, according to the allegations of the bill, the property assigned by said firm to said Kahn was of about the value of •8180,000, — more than sufficient to pay all the preferred creditors. Who the other creditors not preferred are, does not apocar, or how much was due them. If there was enough property to pay the preferred creditors, no fraud would he found as to them. The plaintiff seeks to present the point that the naming of the amount of the debt of plaintiff in the assignment as $45,000 was a mistake, with no intention of defrauding creditors. But there are no allegations in the hill which would warrant the court in ruÍLig upon that point. Counsel for defendants contends that the point presented arises under a statute which originated in Hew York, and that there it has received a construction to the effect that, where an assignee prefers a creditor for a larger amount than his claim, it shall he deemed fraudulent as to creditors. I am satisfied that this rule, maintained by many decisions of tbe highest court of Hew York, is not a construction of a statute^ but a rule of evidence. It is held by those courts that such facts are evidence sufficient to prove that the assignment was made with an intent to hinder, delay, and defraud creditors. After some reflection, I think facts are not presented in the bill which will allow me to properly rule upon this point; that the points sought to be presented should be raised by answer, and a reply thereto; hence, this objection to the bill is overruled.