In re Hymes Buggy & Implement Co.

• Decision Date: 27 June 1904
• Citation: 130 F. 977
• Parties: In re HYMES BUGGY & IMPLEMENT CO.
• Court: U.S. District Court — Western District of Missouri

130 F. 977

In re HYMES BUGGY & IMPLEMENT CO.

United States District Court, W.D. Missouri, Southern Division.

June 27, 1904

On the 2d day of May, 1904, Parlin & Orendorff Company brought an action of replevin in the circuit court of Greene county Mo., against the bankrupt, Hymes Buggy & Implement Company to recover possession of certain personal property consisting of rakes, grinders, wagons, buggies, etc., alleged to be of the value of $8,000, covering about 200 items. On receiving the writ of replevin, the sheriff on that day went to the storehouse of the bankrupt and took possession by taking the key and locking up the store. This store contained a large amount of goods of like character, marked with the name of Hymes Buggy & Implement Company, in addition to the goods claimed by the claimant. The sheriff, with the assistance of the claimant's agent on the ground, was unable to identify the goods claimed in the writ, and sent for a bookkeeper or salesman of the petitioner at St. Louis who arrived on the 3d day of May, who, with the servant of the sheriff, undertook to identify the goods claimed by the petitioner, and to make an inventory of them. This inventory was completed on that day, and handed to the sheriff perhaps on the morning of the 4th of May. On the latter day proceedings in bankruptcy were instituted by other creditors against Hymes Buggy & Implement Company, on which it was adjudged a bankrupt; and one F. M. Mcdavid was appointed receiver, and forthwith executed bond, and was ordered to take charge of the assets of the bankrupt estate. Thereupon, on the same day, the sheriff surrendered the possession of said goods to the receiver. Other facts will appear in the opinion of the court. Afterwards the said Parlin & Orendorff Company presented its petition to the referee in bankruptcy to have the property claimed to have been seized under the writ of replevin by the sheriff turned over to it on the ground that, the state court having first acquired jurisdiction of the subject-matter, the goods in question were in custodia legis of the state court. On hearing before the referee the petition was denied, and exceptions taken to the action of the referee by petitioner. The questions involved have been certified to the judge of the court for review.

Massey & Schmook, for claimant.

John S. Farrington and W. A. Rathbun, for trustee.

PHILIPS District Judge (after stating the facts as above).

The contention of the petitioning claimant is that the property in question was in custodia legis when the receiver in bankruptcy obtained possession under the seizure made by the sheriff in the action of replevin instituted in the state court; and that, as the state court first obtained jurisdiction of the subject-matter in controversy, it was exclusive of any right of the bankrupt court to proceed to administer the property. If the case were to be made to turn upon the question of fact and law as to whether there was an actual seizure and reduction to possession of this property by the sheriff as against the creditors of the bankrupt represented by the receiver, it would not be free from embarrassment. The referee has found that the property claimed by petitioner was mingled and confused with a large mass of other property in the storehouse of the Hymes Buggy & Implement Company, with no visible earmarks by which it was distinguishable from the mass. The only levy made by the sheriff was constructive, by taking the key to the building and locking it up, and afterwards undertaking to take an inventory. It was in fact conceded by the action of petitioner's counsel and agent that included in this mass of property in the storehouse were goods of a similar character not claimed by the petitioner, and a considerable portion thereof were by said attorney and agent ordered to be released in favor of other claimants. There was no segregation of the property claimed by petitioner, or removal thereof. Neither the sheriff nor petitioner's agent on the ground was able to identify the property claimed, and therefore this agent sent to his house for a bookkeeper and salesman, who came out to attempt this work of identification. He and the servant of the sheriff undertook this identification, and to make out an inventory which inventory was not delivered to the sheriff until perhaps the morning of the 4th of May, the day of the institution of the proceedings in bankruptcy against the Hymes Buggy & Implement Company. This list did not correspond with the items claimed in the writ of replevin, nor accord with the list as presented in the petitioner's claim presented to the referee in bankruptcy. Under the state of proofs in the record before the court, it would be something of guesswork as to what particular property the court should order turned over to the petitioner if his petition were granted.

But passing this by, it affirmatively appears from the referee's findings, and the evidence amply sustains it that whatever possession of the goods the sheriff acquired under the writ of replevin was on the 4th day of May, 1904, voluntarily surrendered by him to the receiver in bankruptcy. This constituted an abandonment of his seizure, and entitled the receiver in bankruptcy, as the representative pro hac of the debtor and creditors, to receive and to hold it. It is a well-settled rule of law that a release of the goods levied on or seized under writ by a sheriff is an abandonment thereof, and invalidates the levy. Western v. Dorr, 25 Me.176, 43 Am.Dec. 259; Dunklee v. Fales, 5 N.H. 527; Bagley v. White, 4 Pick. 395, 16 Am.Dec. 353; Commonwealth v. Contner, ...