Bates v. Days

• Decision Date: 11 July 1883
• Citation: 17 F. 167
• Parties: BATES and others v. DAYS.
• Court: U.S. District Court — Western District of Missouri

17 F. 167

BATES and others v. DAYS.

United States Circuit Court, W.D. Missouri.

July 11, 1883

Dysart & Foster, for Rubey.

Botsford & Williams and Mr. Carlile, for Hemphill and Bailey.

KREKEL J.

The facts in the case are as follows:

Bates a citizen of New York, sued Days, a citizen of Macon City Macon county, in the state of Missouri, by attachment on a claim amounting to $3,800, and the United States marshal, on the twentieth day of March, 1882, under a writ, seized a stock of goods, books, notes, and accounts, valued at $12,000, as the property of Days. On the day of the seizure one Rubey, a citizen of the state of Missouri, as assignee of the Macon City Savings Bank, sued out an attachment in the state court against Days on a claim of the bank for $3,500 and the sheriff of Macon county, to whom the writ was directed, undertook to levy the attachment on the property seized by and in the actual possession of the United States marshal. In his return the sheriff states that he levied the attachment on the stock of goods of Days, subject to the attachment of Bates in the United States court, and that he notified the marshal of the attachment and levy, and that he summoned him as garnishee. Some days after the levy by the sheriff, Hemphill and Bailey, two non-residents of the state of Missouri, sued out an attachment each against Days in this court, and the United States marshal levied the same on the goods which he had seized on the attachment of Bates. The property attached was sold under an order of this court, and about $8,000 realized. The first attachment of Bates, amounting, with costs, to about $4,000, has been paid. There remains in the registry of the court the balance of proceeds, which is claimed by Rubey under his attachment, and by Hemphill and Bailey on their attachments. These adverse claims are the matter in controversy.

The difficulty grows out of the construction of the act of congress regarding attachments, and the application of its provisions to the state laws on the same subject. The laws of Missouri make provision for two or more attachments issuing out of the same or co-ordinate courts in the state, but are silent as to the attachments in United States courts. Rubey, assuming that the state attachment laws prevailed in them, heretofore moved this court for an order directing a transfer of the cases from this to the state court, to have them determined under the state law. This application was denied, because non-residents of the state are entitled to have their controversies determined in the federal courts. Rubey thereupon applied to be made a party to the proceedings in this court, so as to enable him to assert his rights. Leave was granted. Hemphill and Bailey, though later than Rubey in time with their attachments, yet claim the proceeds in controversy, because they say Rubey has no standing in this court. This depends upon the construction given to the federal and state attachment laws. And first of the provisions of the federal statute:

Section 915 provides: 'In common-law cases in the circuit and district courts the plaintiff shall be entitled to similar remedies by attachment or other process against the property of defendant which are now provided by the laws of the state in which such court is held for the courts thereof. ' All other provisions regarding attachments, found in the United States Statutes, pertain to exceptions or limitations, or look to the effective enforcement of state attachment laws. The remedies in the United States courts, under the provisions cited, are toe be similar to those provided for the courts of the state. What are the remedies provided by the laws of the state of Missouri in cases such as the present? Section 447 of the Statutes of Missouri is as follows:

'Where the same property is attached in several actions by different plaintiffs against the same defendant, the court may settle and determine all controversies which may arise between any of the plaintiffs in relation to the property, and the priority, validity, good faith, and effect of the different attachments, and may dissolve any attachment, partially or wholly, or postpone it to another, or make such order in the premises as right and justice may require.'

If the writs issue from different courts of co-ordinate jurisdiction, such controversies shall be determined by that court in which the first writ of attachment was issued.

Under the provisions of the laws of the United States cited, this court administers the laws of the state of Missouri regarding attachments. That law, as is shown in the provision cited has amply provided for the case in hand, which requires the determination of the property between Rubey, Hemphill, and Bailey. That Rubey, with his attachment in the state court, was prior in time to Hemphill and Bailey, is not disputed. But it is said that Days' property was in the hands of the United States marshal,-- in other words, in the hands of the law,-- and therefore could not be attached. This is true,...