Kohn v. Ryan

• Citation: 31 F. 636
• Parties: KOHN and others v. RYAN and others.
• Decision Date: 11 June 1887
• Court: U.S. District Court — Southern District of Iowa

31 F. 636

KOHN and others v. RYAN and others.

United States Circuit Court, S.D. Iowa, Central Division.

June 11, 1887

Lehman & Park, for plaintiff.

Cummins & Wright, for garnishee.

SHIRAS J.

On the eighth day of February, 1887, this action was commenced against the defendant Patrick Ryan to recover the sum of $1,914.14 due on account for goods sold. A writ of attachment was sued out, and served by garnishing Michael Ryan, who answers to the writ, setting forth that on the fifth day of February, 1887, Patrick Ryan executed to him a general deed of assignment of his property for the benefit of creditors under the provisions of the statute of Iowa; that on said fifth day of February he accepted said trust, the deed of assignment having been properly recorded, and filed an inventory of the property in the district court of Guthrie county, Iowa; that several parties, claiming liens on the assigned property, have brought proceedings for the foreclosure thereof in said state court, where the same are now pending; that said garnishee has in his hands some $6,700, realized from sales of the assigned property, the same being held by the garnishee subject to the orders of said state court, to be by it distributed as provided by law; and that the garnishee has not in his possession, or under his control, any property of the defendant Patrick Ryan, save that which came into his hands by virtue of said deed of assignment.

In support of the motion to be discharged, filed by the garnishee, it is argued, first, that the subject-matter of controversy, to-wit, the validity of the assignment, can only be heard and determined in the court having control of the assignment proceedings, the contention being that the provisions of the statute requiring the assignee to file bond and inventory in the district court of the county, and giving that court full authority over the assignee, in effect confers upon that court exclusive jurisdiction over all questions affecting the assignment. The statute of Iowa does not create the right to make an assignment for the benefit of creditors. It simply recognizes, and in some particulars restricts, this right, and provides the method by which the trust created by the deed shall be carried into effect. The debtor cannot, under the statute, be compelled to make an assignment, nor can the court, by any order or decree, obtain control over or possession of the debtor's property. The debtor can, by executing a proper deed, convey his property in trust to an assignee, just as by the execution of a will he can transfer the title to his property, at his death, to the executor named in his will. In both cases express trusts are created, and by the provisions of the state statutes the state court is clothed with power and authority to supervise and direct the administration of the trusts thus created.

It has never been held that the probate of the will in the proper state court, and the filing of a bond and inventory by the executor, confers upon that court the exclusive jurisdiction of the question of the validity of the will so filed. In Leighton v. Orr, 44 Iowa, 680; Gilruth v Gilruth, 40 Iowa, 346; and Havelick v Havelick, 18 Iowa, 414,-- it is held by the supreme court of Iowa that the filing and probate of a will in the county or circuit court did not deprive the district court of jurisdiction of an original proceeding to annul and set aside a will; and in Gaines v. Fuentes, 92 U.S. 10, it is held that where, by the statutes of the state, jurisdiction is vested in the state courts to entertain an independent proceeding to test the validity of a will, the United States courts will have like jurisdiction, if the adversary parties are citizens of different states.

If the jurisdiction over estates and wills vested in the probate court of the states does not oust the jurisdiction of other courts over the question of the validity of the will, why should the control given to the district court of the state in cases of an assignment deprive all other courts of jurisdiction over cases brought to test the validity of the assignment? The argument in support of the exclusive jurisdiction of the probate court is, in fact, much stronger than in cases of an assignment. Before a will can be probated, notice of the hearing must be given, and a contest may be made by parties interested.

Again independent of statutory authority, a bill in equity will not lie to set aside a will, or annul probate thereof. Broderick's Will, 21 Wall. 508. In case of an assignment, the statutes of Iowa do not provide for a hearing upon the question of the execution or validity of the deed; and to secure a hearing upon these questions it is absolutely necessary that an independent proceeding should be instituted, and, unless the invalidity of the deed is apparent on its face, ordinarily a bill in equity would be the proper mode of attack, especially if the title to realty is involved. The jurisdiction over such independent proceeding, to test the validity of the assignment, is not limited to the court in which the assignee has filed his bond and...