Edmonston v. Sisk
| Decision Date | 12 July 1946 |
| Docket Number | No. 3277.,3277. |
| Citation | 156 F.2d 300 |
| Parties | EDMONSTON v. SISK. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul Pinson, of Tulsa, Okl., for appellant.
Theodore Rinehart, of Tulsa, Okl. (Doerner, Rinehart & Stuart and S. J. Clendinning, all of Tulsa, Okl., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
This is an appeal from an order of the United States District Court for the Northern District of Oklahoma appointing a receiver in aid of execution to satisfy an unpaid and final judgment previously rendered by that court against appellant, H. A. Edmonston, in the amount of $8,027.65. Paul Sisk, appellee here, is the assignee of the judgment.
On April 10, 1945, an execution was issued on this judgment by the Clerk of the District Court for the Northern District of Oklahoma, addressed to the Marshal of the Western District of Oklahoma, and was returned "no property found subject to execution". Thereafter and on September 19, 1945, appellee filed with the Court an application for order in aid of execution, pursuant to which appellant was directed to appear before the court. As a result of a hearing on this application, the court issued an order restraining and enjoining appellant, pending further order of the court, from transferring, disposing of or incumbering in any manner any of his property located in the State of Oklahoma, except that exempt by law, and ordered appellant to furnish a detailed list of contracting equipment and machinery belonging to him in Oklahoma. Upon further hearing, the court appointed a receiver to take possession of all interest of appellant in an indebtedness claimed by him to be due from the Defense Plant Corporation of Cincinnati; all interest and proceeds derived by appellant from pending litigation instituted by him against the Cities Service Gas Company, and certain described machinery and equipment belonging to appellant located in the State of Oklahoma. It was further provided that appellant should be permitted to remain in physical possession of the equipment and machinery, but was restrained and enjoined from removing same out of the State of Oklahoma without order of the court. The receiver was instructed to receive all proceeds realized out of the assets and apply same toward the payment and satisfaction of the judgment. This appeal is from that order.
Appellant first challenges the jurisdiction of the trial court on the grounds that execution in the district wherein the debtor resides is a jurisdictional prerequisite to execution in any other district or proceedings in aid of execution; that since the only execution issued in this case was in the Western District of Oklahoma, and not in the Northern District where the judgment debtor resides, the court had no jurisdiction to appoint a receiver in aid of execution on the judgment.
Rule 69(a) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A. following section 723c provides in part: "The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable." (Italics ours.) Procedure in aid of execution in Oklahoma is governed by Title 12 O.S.A. Sec. 841 et seq. Section 842 provides: "When an execution against a judgment debtor * * * issued to the sheriff of the county where he resides * * * is returned unsatisfied, in whole or in part, the judgment creditor is entitled to an order of the county judge * * * requiring such debtor to appear and answer concerning his property, before such judge * * * within the county to which the execution was issued."
It is said that under this State statute, an execution against a judgment debtor must be issued to the sheriff of the county where he resides, and returned unsatisfied in whole or in part before the judgment creditor is entitled to an order of the county judge requiring him to appear and answer concerning his property, or to any other order in aid of execution. Making application of that statute, it is argued that under Federal practice and procedure, the word "county" as used in the state statute must be interpreted as analogous to "district" in Federal usage. Thus, in the absence of an execution issued in the Northern District where the judgment debtor resides, appellant contends that the trial court had no jurisdiction to appoint a receiver in aid of execution in another district.
But conceding the construction of the state statute as urged, it has, as we have seen, no application where a statute of the United States governs the procedure, and Section 838, Title 28, U.S.C.A. provides: "All writs of execution upon judgments or decrees obtained in a district court, in any State which is divided into two or more districts, may run and be executed in any part of such State; but shall be issued from, and made returnable to, the court wherein the judgment was obtained." See Prevost v. Gorrell, 19 F. Cas.1297, No. 11,402; Treadwell v. Seymour, C.C., 41 F. 579; Robbins v. Festetics, D.C., 299 F. 816. This statute was specifically recognized by the Advisory Committee on rules of Civil Procedure as surviving Conformity Rule 69. See notes of Advisory Committee on rules following Rule 69 of Civil Procedure, Title 28 U.S. C.A. following section 723c. Hence, the Federal, not the state statute, delimits the territorial jurisdiction of the court's writs of execution. It follows therefore that the jurisdictional impediment imposed by the state statute has no application here.
Next it is insisted that if the court had jurisdiction to issue the writ to the Western District, the property located in that District belonging to the judgment debtor was more than adequate to satisfy the judgment, and the trial court therefore abused its discretion in appointing a receiver in aid of execution.
The Marshal valued the machinery and equipment at approximately $4,000, on which there was a chattel mortgage of record in favor of the Fourth National Bank of Tulsa in the amount of $40,000, and consequently he returned "no property found subject to execution". The Marshal first refused to levy execution until satisfactory indemnity bond had been furnished by the judgment creditor, when however the judgment creditor refused, he proceeded to value the machinery and equipment and to make his return accordingly. Appellant claims and offered testimony to the effect that this...
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