Fountain v. 624 Pieces of Timber

• Decision Date: 16 July 1904
• Docket Number: 1,067.
• Citation: 140 F. 381
• Parties: FOUNTAIN v. 624 PIECES OF TIMBER.
• Court: U.S. District Court — Southern District of Alabama

140 F. 381

FOUNTAIN v. 624 PIECES OF TIMBER.

No. 1,067.

United States District Court, S.D. Alabama.

July 16, 1904

G. L. &amp H. T. Smith, for petitioner Powers.

Fitts &amp Stoutz, for libelant.

TOULMIN District Judge.

The court which obtains possession of property or of a controversy by priority in the service of its process acquires exclusive jurisdiction for all the purposes of a complete adjudication. B. & O.R.R. Co. v. Wabash R Co., 119 F. 678, 57 C.C.A. 322. The well-settled doctrine is that when a court, in the progress of a suit properly pending before it, takes possession of property under an attachment or by any other mesne or final process its jurisdiction over the property for the time being becomes exclusive, and no other court can lawfully interfere with the possession so acquired. Merritt v. Barge Co., 79 F. 228, 24 C.C.A. 530, and authorities therein cited. One court cannot take property from the custody of another court by any process, for this would produce a conflict extremely embarrassing to the administration of justice. Freeman v. Howe, 24 How. (U.S.) 450, 16 L.Ed. 749; Senior v. Pierce (C.C.) 31 F. 625; Heidritter v. Elizabeth Oil-Cloth Co., 112 U.S. 294, 5 Sup.Ct. 135, 28 L.Ed. 729. It is a principle of right and law, and therefore of necessity. It leaves nothing to discretion or mere convenience. Covell v. Heyman, 111 U.S. 176, 4 Sup.Ct. 355, 28 L.Ed. 390. Property seized by the sheriff under the process of attachment from the state court, and while in the custody of the officer, cannot be seized or taken from him by a process from any other court; but, to give the court claiming such custody jurisdiction, there must be a valid seizure and actual control of the res under the process. Freeman v. Howe, supra; In re Hall & Stilson (C.C.) 73 F. 527. The possession of the officer of a court under legal process is the possession of the court. Taylor v. Carryl, 20 How. 583, 15 L.Ed. 1028. The doctrine referred to is recognized and admitted by the counsel in this case.

The sole question here is whether the property, the timber involved in this controversy was in the prior possession of the state court under color of legal process; whether at the time of the seizure of said timber by the marshal under the process from this court the state court had the possession and control of the timber under the writ of attachment which issued from that court. Unless there was a valid levy of the attachment, the state court never acquired the possession or actual control of the timber. To constitute a levy on personal property, the officer must not only have a view of the property, but must assume dominion over it. Goode v. Longmire, 35 Ala. 668, 76 Am.Dec. 309; Abrams v. Johnson, 65 Ala. 465; Hamilton v. Maxwell, 119 Ala. 23, 24 South 769. And, while a summons of a garnishee may constitute a levy of an attachment, the service of garnishment process upon persons in possession of specific chattels creates no lien thereon, in the absence of an actual levy, and does not constitute an act of possession or dominion over such chattels. Maish v. Bird (C.C.) 48 F. 607. The undisputed evidence shows that the deputy sheriff, who had the attachment in hand for execution, made no valid levy on the timber. It was in a raft moored in a public boom, of which Gaines Fountain was the proprietor or manager. The deputy sheriff viewed it. He did not go on it, or then ascertain the exact number of pieces of timber there were in the raft; but he informed Fountain that he had the attachment, and engaged Fountain to count the exact number of pieces of timber there were in the raft and to report the same to him, which was...