In re Walsh Bros.

• Decision Date: 03 March 1908
• Docket Number: 596.
• Citation: 159 F. 560
• Parties: In re WALSH BROS.
• Court: U.S. District Court — Northern District of Iowa

159 F. 560

In re WALSH BROS.

No. 596.

United States District Court, N.D. Iowa, Eastern Division.

March 3, 1908

H. J Fitzgerald, for trustee.

Ellis &amp Ellis and Frank Lingenfelder, pro se.

REED District Judge.

Walsh Bros., a copartnership engaged in the buying and selling of farm implements at Charles City, Floyd county, this state was adjudged bankrupt by this court January 17, 1908, upon its own petition, and the matter was referred to the proper referee the same day. December 18th, prior to the bankruptcy a writ of attachment was sued out of the district court of Iowa in and for Floyd county against the bankrupt and levied upon its property by the sheriff of that county, and he held it under that writ at the time of the adjudication in bankruptcy. The referee received the record in the bankruptcy proceedings January 18th, and on that day informed the sheriff of the bankruptcy, and requested him to hold the property which he had levied upon for him (the referee) until a trustee for the bankrupt estate could be appointed. January 22d, the Moline Plow Company, an Illinois corporation, by Ellis & Ellis, its attorneys at Charles City, sued out of the state court in and for Floyd county a writ of replevin for a part of the property seized by the sheriff, upon the ground that it had been sold by it to the bankrupts upon their false representations made to the company to induce such sale. The writ, being against the sheriff, was placed in the hands of the coroner of Floyd county, pursuant to the statute of the state, for service, who thereunder took from the sheriff property of the bankrupts so held by him of the value of some $800, and on the same day (January 22d) delivered it to the Moline Plow Company, on board the cars of the Chicago, Milwaukee & St. Paul Railway Company, at its station in Charles City, and it was shipped out of the state. January 24th the J.I. Case Plow Works, a Wisconsin corporation, and the Staver Carriage Company, an Illinois corporation, by Frank Lingenfelder, an attorney at Charles City, sued out of the state court separate writs of replevin for other goods so held by the sheriff, upon the grounds that they severally were induced by the fraud and misrepresentations of the bankrupts to sell them such goods. The J.I. Case Plow Works further alleged that it sold the goods to the bankrupts under a written contract whereby it reserved the title to the same until the purchase price should be paid. Each of the writs was delivered to the coroner for service, who upon the same day (January 24th) took from the sheriff property of the alleged value of some $1,325, and delivered it to the respective plaintiffs in the replevin suits, on board the cars of the Chicago, Milwaukee & St. Paul Railway Company, in Charles City, and such property also was at once shipped out of the state. Ellis & Ellis and Frank Lingenfelder, attorneys for the respective plaintiffs in the replevin suits, and the coroner, were each informed of the bankruptcy proceedings before the replevin suits were commenced or the writs of replevin served by the coroner. February 3d a trustee was appointed for the bankrupt estate, who duly qualified as such, and on February 10th presented to this court petitions reciting the foregoing facts, and asked for such orders as would secure the return to the trustee of the property, or its value, so taken from the custody of the court and removed from the state. A citation was accordingly issued to the several plaintiffs in the replevin suits, their attorneys, and the coroner to appear in court upon a day certain and show cause why they should not return to the trustee the property so taken and be adjudged in contempt for seizing the same and removing it from the state, which citation was duly served upon the attorneys and coroner in this district, and upon the plaintiffs in the replevin suits in Illinois and Wisconsin, respectively. Ellis & Ellis, Lingenfelder, and the coroner have appeared pursuant to such citation and filed separate answers for themselves only, in which they respectively deny any intent or purpose on their part of wrongfully interfering with the property in the custody of this court, and aver that the property, when seized by the coroner, was not in its custody or of any of its officers, but was in the exclusive custody and control of the sheriff under the writ of attachment. They further aver that the property taken under the writs of replevin was not the property of the bankrupts, but belonged to the respective plaintiffs in the replevin suits, and that the title thereto did not pass to the trustee in bankruptcy.

It is urged that, if the plaintiffs in the several replevin suits sold the property replevined by them respectively to the bankrupts, under such...