Allen v. Ingalls

• Decision Date: 13 April 1911
• Docket Number: 1,866.
• Citation: 114 P. 758,33 Nev. 281
• Parties: ALLEN v. INGALLS, Sheriff.
• Court: Nevada Supreme Court

114 P. 758

33 Nev. 281

ALLEN v. INGALLS, Sheriff.

No. 1,866.

Supreme Court of Nevada

April 13, 1911

On petition for rehearing. Denied.

For former opinion, see 111 P. 34.

NORCROSS J.

Counsel for appellant have filed a petition for a rehearing, basing their contention for the same upon the ground that we erred in allowing any recovery against the appellant as sheriff for the services of the keeper of the attached property after the defendant in the attachment suit was adjudicated a bankrupt. A very careful review of our former decision (111 P. 34), not only convinces us that it is free from legal error, but a further examination of the facts disclosed by the record relative to the adjudication in bankruptcy convinces us that the assumption that such adjudication operated to dissolve the attachment is erroneous. It was stipulated by respective counsel in the case "that on the 28th day of July, 1908 in the voluntary proceedings in bankruptcy in the District Court of the United States for the state of Nevada, he, said J. W. Tracy, was duly adjudged a bankrupt."

There is nothing in the record showing when the petition in bankruptcy was filed, and, if there is any presumption to be indulged in, it is that the petition was filed upon the day of the adjudication, for the statute requires no notice of the hearing, but, upon the contrary, contemplates a hearing forthwith and an adjudication or a dismissal of the petition. The statute reads: "Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee." 30 U.S Stat. 551; vol. 1, Fed. Stat. Ann. 585 (U. S. Comp. St. 1901 p. 3429); 5 Cyc. 300.

The writ of attachment in the case of Wood, Curtis & Co. v. J. W Tracy was issued March 23, 1908, and the levy was made not later than March 26th; hence more than four months had elapsed from the time the lien attached before the petition in bankruptcy is shown to have been filed. Only attachment liens which have applied within four months of the date of the filing of the petition in bankruptcy are dissolved by the adjudication in bankruptcy. 30 U.S. Stat. 565; vol. 1, Fed Stat. Ann. 542, 693 (U. S. Comp. St. 1901, pp. 3422, 3450); In re Ferguson (D. C.) 95 F. 429; In re...