Lockridge v. Vollmer Clearwater Co.
| Decision Date | 28 June 1930 |
| Docket Number | 5587 |
| Citation | 49 Idaho 508,289 P. 995 |
| Parties | R. A. LOCKRIDGE, Appellant, v. VOLLMER CLEARWATER COMPANY, Respondent |
| Court | Idaho Supreme Court |
BANKRUPTCY-ATTACHMENT-PROPERTY OF BANKRUPT ESTATE.
Bankrupt not redeeming property attached over four months before bankruptcy petition held divested of property as regards jurisdiction of bankruptcy court to set property aside as exempt (Bankr. Act, sec. 67f, 11 U.S. C. A., sec. 107 (f).
APPEAL from the District Court of the Tenth Judicial District, for Lewis County. Hon. Miles S. Johnson, Judge.
Action to quiet title. Judgment for defendant. Affirmed.
Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.
Benjamin F. Tweedy, for Appellant.
The judgment on which respondent relies became absolutely void and inoperative for at least two reasons: (a) It was entered within four months before bankruptcy; (b) It was entered before the appellant was discharged in bankruptcy and the appellant had no chance to plead his discharge as a defense against its entry, or against its being given. (A Klipstein & Co. v. Allen-Miles Co., 136 F. 385, 69 C. C A. 229; Barnes Mfg. Co. v. Norden, 67 N.J.L. 493, 51 A. 454; Finnell v. Armouro; 39 Utah 316, 117 P. 49; Crocker v. Bergh, 118 Minn. 316, 136 N.W. 737; Boggs v. Dunn, 160 Cal. 283, 116 P. 743; Cavanaugh v. Fenley, 94 Minn. 505, 110 Am. St. 382, 103 N.W. 711.)
Tannahill & Leeper and R. E. Durham, for Respondent.
Attachment had prior to four months' period constitutes valid lien on the property and is not affected by the adjudication of the bankrupt. (Bankruptcy Act 1898, sec. 67; 4 Remington on Bankruptcy, secs. 1806, 1886; 5 Remington on Bankruptcy, sec 2050; Pelton v. Sheridan, 74 Ore. 176, 144 P. 410, 413; Francis Batchelder & Co. v. Wedge, 80 Vt. 353, 67 A. 828; Wright v. First Nat. Bank, 63 Utah 451, 226 P. 671; Yumet & Co. v. Delgado, 243 F. 519, 156 C. C. A. 217; In re Blair, 108 F. 529; Griffin v. Lenhart, 266 F. 671.)
Property set off to the bankrupt as exempt remains in him as though he had never been adjudicated a bankrupt and is subject to liens existing at the time of the adjudication. (Lockwood v. Exchange Bank, 190 U.S. 294, 23 S.Ct. 751, 47 L.Ed. 1061; In re Dittmar, 249 F. 606, 161 C. C. A. 532; In re Brown, 228 F. 533, 537; In re Weaver, 144 F. 229; In re Castleberry, 143 F. 1018; Powers Dry Goods Co. v. Nelson, 10 N.D. 580, 88 N.W. 703, 58 L. R. A. 770; In re Vonhee, 238 F. 422, 425; In re Jackson, 116 F. 46, 47; In re Hartsell & Son, 140 F. 30.)
October 19, 1927, respondent sued appellant in the district court of Lewis county and a writ of attachment therein issued. Appellant defaulted and judgment was entered April 7, 1928. A writ of execution was issued on that day and the real property involved herein, previously attached, was sold to the respondent May 15, 1928. No redemption ensuing, a deed was made.
On April 26, 1928, appellant filed a petition in bankruptcy in the United States district court for eastern Washington, in which proceeding he was adjudged a bankrupt May 4, 1928.
On January 23, 1928, his wife filed a declaration of homestead on the property involved herein. At the time of the attachment appellant and his family had moved from Idaho and were living in Washington.
July 9, 1928, appellant filed in the bankruptcy action a claim of exemption on the property in Idaho, claiming this exemption under the laws of Washington. On the same day the bankruptcy court issued an order setting the property aside as exempt and on December 3, 1928, the bankrupt was discharged.
Thereafter appellant brought this present action to quiet title to this property in Lewis county. He assigns various errors. One point, however, is determinative of the issue. The attachment suit and the execution, so far as we are advised by the record, were in all particulars regular. The court had jurisdiction of the property, the subject matter of the suit and the defendant. The attachment having issued more than the four months prior to the filing of the petition in bankruptcy, and no redemption having been made, respondent's deed had, so far as the bankruptcy proceedings were concerned, divested appellant of all right or title to the property. ...
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