In re Stark

Decision Date12 September 1929
Citation36 F.2d 280
PartiesIn re STARK, City Court Marshal.
CourtU.S. District Court — Western District of New York

Botsford, Mitchell, Albro & Weber, of Buffalo, N. Y., for petitioner.

HAZEL, District Judge.

The petition by a marshal of the city court of Buffalo praying for payment to him of $79.91 by virtue of a writ of attachment issued upon a judgment recovered in the state court by Albert H. Burger, assignee of one H. Ely Goldsmith, against Juray Bolga, against the money or property of the defendant in the registry of this court, is denied.

The record of this court shows that Juray Bolga, an alien, on July 2, 1928, in lieu of bail and surety that he would appear for judgment in a habeas corpus proceeding and render himself in execution thereof, deposited three Liberty bonds (not registered) aggregating $250, and that the relator subsequently surrendered himself for deportation, pursuant to the warrant duly issued by the Secretary of Labor and dismissal of the writ, and was deported to Canada where he now resides. The bail bond deposit in question — 2 Liberty bonds for $100 each, and the third for $50 — was deposited by the Clerk of this court with a designated depository of the United States under section 995, Rev. St. (28 USCA § 851), in the name and credit of the court, and cannot be diverted or withdrawn under section 996, Rev. St. (28 USCA § 852), except by order of a judge of the court. In this court an attachment in rem is not effective against property of a nonresident defendant who has not been personally served with process in a plenary action, or who has not voluntarily submitted himself to the jurisdiction of the court. Concededly no process was served on Juray Bolga, who, prior to the commencement of the action against him in the city court of Buffalo, had been deported. He has not voluntarily submitted himself to the jurisdiction of this court. The attachment is simply incidental to the suit brought against him. See U. S. v. Brooke, 184 F. 341, decided by this court and cited with approval in Big Vein Coal Co. v. Read, 229 U. S. at page 38, 33 S. Ct. 694, 57 L. Ed. 1053, and see Laborde v. Ubarri, 214 U. S. 173, 29 S. Ct. 552, 53 L. Ed. 955. The Clerk holds the separate bonds deposited with her and claimed to have been attached, not as an individual but in her capacity as Clerk of this court, and, accordingly, the judgment of the state court, and attachment issued in pursuance thereof, constitute no attachable lien or claim upon the bonds or...

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5 cases
  • Allen v. Clark, 8158Y.
    • United States
    • U.S. District Court — Southern District of California
    • March 29, 1938
    ... ... 1265; Laborde v. Ubarri, 1909, 214 U.S. 173, 29 S.Ct. 552, 53 L.Ed. 955; Big Vein Coal Co. v. Read, 1913, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053; Ex parte Des Moines & M. Ry. Co., 1880, 103 U.S. 794, 24 L.Ed. 461; United States v. Brooke, D.C.N.Y., 1910, 184 F. 341; In re Stark, D.C.N.Y., 1929, 36 F.2d 280; McMurray v. Chase National Bank, D.C.Wyo. 1935, 10 F.Supp. 960; Harland v. United Lines Tel. Co., C.C.Conn., 1889, 40 F. 308, 6 L.R.A. 252 ...         The defendants in the prior action, after first challenging the jurisdiction of the court, made general ... ...
  • Landau v. Vallen
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 6, 1990
    ... ... (20 Wall.) 201, 222, 224, 22 L.Ed. 259 (1873); Bucher v. Vance, 36 F.2d 774, 775 (7th Cir.1929); Jones v. Merchants' Nat'l Bank, 76 F. 683, 684, 687 (1st Cir.1896); Thomas v. Wooldridge, 23 F.Cas. 986, 987 (C.C.S.D.Mo.1875) (No. 13,918) (Bradley, J.); In re Stark, 36 F.2d 280, 280 (W.D.N.Y.1929). It is most frequently invoked when the order of one court interferes with the authority of another to dispose of a res within its custody. See, e.g., Straton v. New, 283 U.S. 318, 321-22, 51 S.Ct. 465, 466-67, 75 L.Ed. 1060 (1931); Cameron v. United States, 231 ... ...
  • Morton v. U.S.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • May 17, 1983
    ... ... 4 Big Vein Coal Co. v. Read, 229 U.S. 31, 38, 33 S.Ct. 694, 696, 57 L.Ed. 1053 (1913); Laborde v. Ubarri, 214 U.S. 173, 29 S.Ct. 552, 53 L.Ed. 955 (1909); Davis v. Ensign-Bickford Co., 139 F.2d 624, 626 (8th Cir.1944); see also In re Stark, 36 F.2d 280 (W.D.N.Y.1929); Olson v. Field Enterprises Educational Corp., 45 Ala.App. 438, 231 So.2d 763, 765 (Ala.App.1970) ("Garnishment is an ancillary proceeding, not an original civil suit.") What the dissent appears to say is that even if the Alabama court was not a court of competent ... ...
  • U.S. v. Van Cauwenberghe
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 20, 1991
    ... ... 1003 (1st Cir.1896); American Exch. Life Ins. Co. v. Putnicki, 510 F.Supp. 19, 20-21 (W.D.Tex.1980); Corporation Co. of Miami v. Mikelis, 467 F.Supp. 826, 827 (S.D.Fla.1979); Reed Marketing Corp. v. Diversified Marketing, Inc., 419 F.Supp. 125, 126 (N.D.Ill.1976); In re Stark, 36 F.2d 280, 280 (W.D.N.Y.1929). See generally 7 C.J.S. Attachment Sec. 60 (1980); 6 Am.Jur.2d Attachment Sec. 196 (1964); 16 Cal.Jur.3d (rev.), Creditors Rights and Remedies Sec. 111 (1983). The justification put forth for this doctrine of custodia legis is "the desirability of avoiding a ... ...
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