McCoy v. Lippner Auto Co.

• Decision Date: 07 October 1924
• Parties: MCCOY v. LIPPNER AUTO CO.
• Court: Tennessee Supreme Court

265 S.W. 988

150 Tenn. 482

MCCOY v. LIPPNER AUTO CO.

Supreme Court of Tennessee.

October 7, 1924

Appeal from Chancery Court, Knox County; Chas. Hays Brown Chancellor.

Suit by Gibson McCoy against the Lippner Auto Company. On appeal from decree affirmed by Court of Civil Appeals. Affirmed.

CHAMBLISS J.

This is an appeal from a decree affirmed by the Court of Civil Appeals, holding the words "In bankruptcy" a sufficient return made by an officer on an execution.

The motion as first made was upon the ground that no return had been made of the execution. Upon it appearing that a return had been made, the motion was then amended so as to question the sufficiency of the return in the words above quoted. Upon the hearing of the motion the fact of a return having been made was put in issue, but the chancellor, sitting as a jury found that the return was in fact made, and, there being material evidence to support his finding, this question is not open for consideration here.

It is earnestly insisted that the indorsement of the words "In bankruptcy" is not a sufficient return. Concurring with the chancellor and the Court of Civil Appeals, we are of opinion that these words, having a well-recognized meaning and clearly conveying the information that all of the property of the execution debtor has been impounded as a result of the institution of bankruptcy proceedings constitute an adequate return. It is well settled that the filing of a petition in bankruptcy is a caveat to all the world, in effect an attachment and injunction. Bank v Sherman, 101 U.S. 403, 25 L.Ed. 866; Acme Harvester Co. v. Beekman Lumber Co., 222 U.S. 300, 32 S.Ct. 96, 56 L.Ed. 208. This language is equivalent to an indorsement upon the execution that the defendant has no property subject to execution.

It is suggested that in the instant case the defendant at the time of the issuance of this execution, pending the bankruptcy proceedings against him, had acquired title to property which he did not own at the time of the filing of the petition in bankruptcy, and the title to which was therefore subject to execution. This is not a question pertinent to the issue now before us, which involves alone the sufficiency of the return upon its face, and not the question of lack of diligence on the part of the officer in the performance of his duty otherwise under the return. The following Tennessee cases are pertinent in this connection: ...