Corning v. Dreyfus

• Decision Date: 01 February 1884
• Citation: 20 F. 426
• Parties: CORNING and others v. DREYFUS. KREBS and another v. SAME. MADDOX and others v. SAME. ALTSHEED and others v. SAME. DREYFUS and others v. SAME. HOFFHEIMER and others v. SAME. ADDLER and others v. SAME. LAZARD v. SAME. BLOCK and others v. SAME. WEILLER and others v. SAME.
• Court: U.S. District Court — Eastern District of Louisiana

20 F. 426

CORNING and others v. DREYFUS.

KREBS and another v. SAME.

MADDOX and others v. SAME.

ALTSHEED and others v. SAME.

DREYFUS and others v. SAME.

HOFFHEIMER and others v. SAME.

ADDLER and others v. SAME.

LAZARD v. SAME.

BLOCK and others v. SAME.

WEILLER and others v. SAME.

United States Circuit Court, E.D. Louisiana.

February, 1884

Semmes & Payne, for Krebs & Spiers and others.

Chas S. Rice, for Corning & Co.

Bayne &amp Denegre, Miller & Finney, and Walter D. Denegre, for Hoffheimer & Co.

T Gilmore & Sons, for Lazard and Block & Co.

D. C Labatt, for Weiller & Co.

BILLINGS J.

These causes are submitted together with reference to the distribution of the proceeds of property seized under attachments. The questions are as to the claim of a creditor under an attachment from the state court, and as to the order of priority of creditors obtaining attachments in this court. Various creditors had obtained attachments on Sunday in this court, which were also levied on Sunday. The same and other creditors obtained attachments in several suits, also in this court, some early Monday morning, shortly after midnight, and others between 8 and 10 o'clock A.M., which were also levied upon the same property. The intervenor had obtained his writ from the state court on Saturday. Early Monday morning, shortly after midnight, and while the marshal was holding possession of the property under the Sunday writs alone, the sheriff came to the store, where the property was situated, for the purpose of serving the writ, and demanded entrance, which the marshal refused. The sheriff placed his keepers around the building and guarded the same continuously down to the time of the sale, and served notice of seizure and subsequently process of garnishment upon the deputy marshal in charge of the store, who had executed the processes of attachment from this court. The marshal preserved his possession without interruption from the moment of the seizure down to the time he sold the property under the Monday writs, the Sunday writs having been abandoned. The property seized was the wines and brandies, etc., the stock of a wholesale liquor store.

1. As to the effect of what was done by the sheriff. Nothing is before the court except the proceeds of a sale. They, and they alone, can have an award who show title; and, since all claim under process against the property of a common debtor, those alone who show a levy of the process upon the property; for, in this state, the issuance and existence of the process create no lien. It disposes of this part of the case to say that the sheriff made no seizure--no caption of the property. Its possession was withheld from him, and access to it was forcibly denied him. Whether this was done under color of a good or bad writ, or without any writ, all seizure was prevented, and no lien was effected. This would end the case of the intervenor, as to any privilege upon the fund, unless he can maintain that the marshal, holding under color of a writ from this court, can be made to hold also under a writ from the state court subsequently served by the garnishment process. The authorities for this proposition cited are Patterson v. Stephenson, unreported, decided by the supreme court of Missouri at the April term, 1883, and Bates v. Days, 17 F. 167. Those cases are put, by the courts which decided them, upon a statute of the state of Missouri, which was deemed to have been adopted by the practice act of congress, regulating the procedure in the federal courts. In Louisiana we have no such statute, and there is, therefore, no need to discuss the question as to what would be the legal consequences if one existed. In this state the courts are to be guided by the doctrine which is settled by the cases of Hagan v. Lucas, 10 Pet. 400, and Taylor v. Carryl, 20 How. 583, to the effect that when property susceptible of manual delivery has been seized, and is held by the officer of, and under process from, the court of one jurisdiction, it is incapable to be subjected to seizure by another officer of, and under process from, the court of another jurisdiction. The authorities are collated in Wilmer v. Atlanta & R. Air-line R. Co. 2 Woods, 427, 428. It follows, then, that since the goods were, and continued to be, in the physical possession and custody of the marshal, under writs of this court, the intervenor could have acquired, and did acquire, no interest in the goods under his writ from the state court, and he can have no claim to the proceeds arising from their sale.

2. As to the order of priority of the creditors who attached under the writs from this court, no right is claimed and no right could have been acquired under the Sunday writs or seizures. The statute prohibits (Civ. Pr. art. 207) the institution of suits and all judicial proceedings on Sunday. The question then, is as to the priority of the attachments which were issued on Monday; i.e., after 12 o'clock on Monday morning. The statute makes the priority of attachments upon the same property to depend upon seizure. Civ. Pr. art. 723; Scholefield v. Bradlee, 8 Mart. (O.S.) 510; Hepp v. Glover, 15 La. 461; Hermon v. Juge, 6 La.Ann. 768. Priority is to be determined by noticing, when necessary, fractions of the day. Tufts v. Carradine, 3 La.Ann. 430. The property was already in the possession of the marshal, and there is...