48 F. 823 (E.D.Va. 1880), Price v. Price

Citation:48 F. 823
Party Name:PRICE v. PRICE et al.
Case Date:June 01, 1880
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 823

48 F. 823 (E.D.Va. 1880)



PRICE et al.

United States District Court, E.D. Virginia.

June, 1880

J. A. Meredith and E. Barksdale, for plaintiff.

Hansbrough & Hansbrough and Guy & Gilliam, for defendants.


In this case a lien creditor filed a bill in a state court in September, 1874, to subject land of the bankrupt's estate bound by trust-deed, and joined the bankrupt and his assignee in bankruptcy, among others, as defendants. It was competent for the creditor to do so, if he could secure the assignee in bankruptcy as a defendant; but the assignee had no legal authority to become such defendant unless by special order of the bankruptcy court; that court having exclusive jurisdiction over the bankrupt's estate, real as well as personal. See sixth clause of section 711, the eighteenth of section 563, and section 4972, Rev. St. U.S. Unless express authority from the bankruptcy court were necessary to authorize an assignee to be sued in respect to the bankrupt's estate vested by law in him, the law of congress giving exclusive jurisdiction to the bankruptcy court over the bankrupt's estate would be futile, and that jurisdiction would be of no avail. The complainant in the suit in the state court had no right to call the assignee in bankruptcy in that court; nor could the assignee consent to be a party there, except by express order of this court, granting leave. The suit in the state court was therefore faulty in its inception. Nevertheless it went on to a final decree, and was taken up from that decree by petition for appeal to the appellate court of highest resort in the state, and the petition

Page 824

for appeal was unanimously denied by all the judges of that court. I do not know whether the defective inception of the proceeding was shown or relied upon by the defense, either in the court below or in the appellate court. I suppose it was not. The record seems to show that it was not. The cause seems to have been determined in the state court on its merits, and the question of jurisdiction as to the assignee in bankruptcy seems not to have been raised. If the assignee had applied to this court for leave to make himself defendant in the state court it would have been granted unless strong cause had been shown against doing so; and, if the bankrupt had shown, as charged in this case, that the assignee was acting in collusion with the complainant in the...

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