Beeler v. Schumacher

• Citation: 71 F.2d 831
• Decision Date: 29 June 1934
• Docket Number: 6723.,No. 6705,6705
• Parties: BEELER v. SCHUMACHER, Sheriff. WILLIS v. BEELER. In re LONG & ALLSTATTER CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

71 F.2d 831 (1934)

BEELER v. SCHUMACHER, Sheriff.

WILLIS v. BEELER.

In re LONG & ALLSTATTER CO.

Nos. 6705, 6723.

Circuit Court of Appeals, Sixth Circuit.

June 29, 1934.

Brandon R. Millikin, of Hamilton, Ohio, and Province M. Pogue, of Cincinnati, Ohio (Henry B. Street, Robert Houston French, and Harmon, Colston, Goldsmith & Hoadly, all of Cincinnati, Ohio, Williams, Sohngen, Fitton & Pierce, of Hamilton, Ohio, and Pogue, Hoffheimer & Pogue, of Cincinnati, Ohio, on the brief), for R. K. Beeler.

John W. Peck and Coleman Avery, both of Cincinnati, Ohio (Paul A. Baden, of Hamilton, Ohio, and Peck, Shaffer & Williams, of Cincinnati, Ohio, on the brief), for Schumacher and Willis.

Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The meritorious question involved in both causes is whether a levy upon real and personal property by the sheriff of one Ohio county under a judgment of the court of another county results in the custody of the property being acquired by the court rendering the judgment, and therefore immune to process of the bankruptcy court in proceedings begun more than four months after the entry of the judgment and the making of the execution levy. Before this can be decided, however, a number of jurisdictional questions must be determined.

A. Hunter Willis on June 10, 1932, obtained a judgment against the bankrupt in the court of common pleas of Hamilton county, Ohio. The bankruptcy adjudication followed on April 4, 1933. Meanwhile, and more than four months prior to adjudication, the judgment creditor obtained a writ of execution from the Hamilton county court, directed to the sheriff of Butler county, who contemporaneously levied on both the personal property and the real estate of the bankrupt. The judgment creditor appeared specially in the bankruptcy proceedings, and moved that the trustee therein either pay the judgment with interest and costs or disclaim all right, ownership, and control of the property levied upon. The referee to whom the motion was referred entered an order granting it with respect to the personal property, but denying it with respect to the real estate. Willis petitioned the District Judge to review the referee's order, but, so far as we are advised by the record, no disposition has been made of his petition to review. Subsequently, upon motion of the trustee, a temporary injunction was issued in the bankruptcy proceedings, restraining the sheriff from selling the property in Butler county. From this interlocutory decree appeal 6723 is taken.

The trustee, being advised by one of the judges of the District Court that there was doubt as to whether the rights of the judgment creditor could be determined in a summary proceeding since he was an adverse claimant, began a plenary action on the equity side of the District Court, presumably to determine the respective rights to the property of judgment creditor and trustee, and seeking a temporary and permanent injunction likewise to restrain the sale of the Butler county property by the sheriff of that county. The District Court in the latter proceeding denied the injunction and dismissed the suit. While no opinion was filed, it is asserted, and not denied, that the ground for dismissal was the absence of diversity of citizenship. From the order in the plenary proceeding appeal 6705 is taken by the trustee.

The power of the court to adjudicate rights of adverse claimants without their consent in summary proceedings was fully considered in Harrison v. Chamberlin, 271 U. S. 191, 46 S. Ct. 467, 469, 70 L. Ed. 897. By the opinion there it is made clear that no jurisdiction for that purpose exists if the adverse claim is real and substantial, and not merely colorable, but resort must be had by the trustee to a plenary suit. The precedents are there fully cited, and require no restatement here.

The judgment creditor's adverse claim in the instant suit depends upon the validity of the levy under Ohio law. Section 11664, General Code, provides in substance that a writ of execution against the property of a judgment debtor shall command the officer to seize the goods and chattels of the debtor, and, for want of goods and chattels, to sell his lands and tenements for cash. Section 11666 provides as follows: "The officer to whom a writ of execution is delivered shall proceed immediately to levy it upon the goods and chattels of the debtor. If no goods and chattels can be found, the officer shall indorse on the execution the words `no goods,' and forthwith levy it upon the lands and tenements of the debtor which are liable to satisfy the judgment."

Section 11656 subjects all property of a judgment debtor in the county in which the judgment is obtained to a lien, but as to all other lands and chattels the debtor is bound only from the time they are seized upon execution.

In the instant case the sheriff levied simultaneously upon all of the personal property and real estate in Butler county. It is the trustee's contention that the levy is invalid, and that the property was therefore not within the custody of the Hamilton county court. In addition, there is the contention, and, if valid, it must be based upon appropriate findings of fact, that there were no proceedings pending in the common pleas court of Hamilton county for the sale of the real estate at the time of the filing of the bankruptcy petition, and that, in order to institute such sale, it is necessary to execute a præcipe for a writ of venditioni exponas, or order of sale. It is contended that all such writs covering the real estate in question expired before...