150 Mich. 491 | Mich. | 1907
Plaintiff obtained judgment against a bankrupt upon his cognovit and, nearly a year after the adjudication of bankruptcy, began the pending garnishment proceeding, filing an affidavit in the usual form. Without filing a disclosure, the garnishee defendant moved for an order quashing the garnishment proceeding. No issue was framed, the court below granted the motion, and the plaintiff in garnishment assigned error. The validity of plaintiff’s judgment and her standing as a creditor whose demand will survive the discharge of the bankrupt are not questioned. It is the contention of counsel for the garnishee that it is affirmatively made to appear that the trustee in bankruptcy and the plaintiff
It does appear that plaintiff proved her claim against the bankrupt’s estate, that her demand arose prior to the adjudication, that she does seek in the garnishment proceeding to reach and impound money and property which the trustee in bankruptcy, in a pending suit instituted by him against the garnishee defendant, also seeks; or, as recited in a stipulation entered into by the trustee, by the same counsel who represent the plaintiff in garnisment, by the plaintiff and by the defendant in garnishment, the trustee makes certain claims and demands in behalf of the bankrupt estate against the garnishee defendant who denies the validity of all of said claims and the plaintiff Starr asserts the right to enforce against .said defendant a portion of the same claims and demands which the said • trustee is endeavoring to enforce. It appears by the allegations of the bill filed by the trustee that the bankrupt was a retail dealer in pianos in Detroit, and had become indebted to the garnishee defendant; that the property in the hands of defendant, which the trustee seeks, is a large number of piano contracts and pianos delivered to defendant by the bankrupt before the adjudication. It is undoubtedly the law that the creditor may not pursue and subject to payment of his demand assets of the bankrupt existing at the time of the adjudication and not abandoned by the trustee. Title to all such assets, with the exclusive right to recover and possess them for the benefit of the bankrupt’s estate, is vested in the trustee. The power and duty of a court, upon proper showing, to interrupt and dismiss proceedings instituted by a creditor to recover property, the