Prugh v. Portsmouth Sav. Bank

• Decision Date: 06 May 1896
• Citation: 48 Neb. 414,67 N.W. 309
• Parties: PRUGH v. PORTSMOUTH SAV. BANK ET AL.
• Court: Nebraska Supreme Court

48 Neb. 414

67 N.W. 309

PRUGH

v.PORTSMOUTH SAV. BANK ET AL.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. Proceeds of the sale of a homestead are, for six months after said sale, entitled to the same protection against legal process as the homestead itself; and if, during that period, such proceeds are invested in a city lot, such lot may be selected as a homestead, although not yet occupied as such.

2. The amount of an incumbrance is not to be deducted from the $2,000 homestead exemption, but the claimant is entitled to that exemption in excess of such incumbrance. Hoy v. Anderson, 58 N. W. 125, 39 Neb. 386, followed.

3. After a federal court has acquired jurisdiction of the parties and subject-matter of a controversy, a state court may not, by injunction or otherwise, interfere with the exercise of such jurisdiction.

4. Accordingly, as a general rule, a state court will not enjoin parties to an action already in progress in a federal court from further proceeding therein.

5. The exceptions to this rule are based upon the doctrine that, in courts of concurrent jurisdiction, that which first has obtained jurisdiction of the parties and subject-matter retains it for all purposes, and by all necessary process will protect itself in the exercise of that jurisdiction.

6. The jurisdiction of a court does not cease by the rendition of judgment, but continues for the purpose of enforcing the judgment.

7. Land levied upon by virtue of a writ of execution is subjected to the process of the court as much as chattels so levied upon.

8. A state court, having no prior jurisdiction of the subject-matter, will not, by injunction, restrain a plaintiff in whose favor judgment has been rendered in a federal court from proceeding to the execution of such judgment. A fortiori it will not restrain a United States marshal from selling property levied upon to satisfy such judgment.

Appeal from district court, Douglas county; Ferguson, Judge.

Action by Eva M. Prugh against the Portsmouth Savings Bank and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Andrew Bevins, for appellant.

John W. Lytle, for appellees.

IRVINE, C.

This was an action by Eva M. Prugh against the Portsmouth Savings Bank and Brad D. Slaughter, United States marshal for the district of Nebraska, to restrain the defendants from selling certain land under an execution issued from the United States circuit court. The plaintiff is a married woman, and, prior to the 23d day of June, 1892, was the owner of a certain lot in the city of Omaha, which was occupied by herself and family as a homestead. On that day she sold this land for $2,500, $1,450 of which was applied to discharge a mortgage on the premises. August 13, 1892, she purchased the lot here in controversy, paying therefor $500 out of the proceeds of the former homestead. August 23, 1892, an execution, issued from the United States circuit court on a judgment of the Portsmouth Savings Bank against Mrs. Prugh, was by the defendant Slaughter, the United States marshal, levied on this lot. It was then vacant, but the plaintiff thereafter erected a cottage thereon, of the value of about $800, which was occupied by the family as a home. The marshal being about to sell this lot under the execution, this action was brought in the district court of Douglas county to enjoin the plaintiff in the federal case and the marshal from so proceeding. The district court refused the injunction and dismissed the case, and the plaintiff appeals.

The case was tried under a stipulation of facts substantially as above set forth. Under these facts there can be no doubt that the land in question was exempt as a homestead from execution and sale in satisfaction of the judgment. Comp. St. c. 36, § 16, provides that, if the homestead be conveyed, the proceeds of the sale, not exceeding the amount of the homestead exemption, shall be entitled, for the period of six months thereafter, to the same protection against legal process which the law gives to the homestead; and that the sale and disposition of one homestead shall not be held to prevent the selection or purchase of another. It has also been settled that, where a homestead has been incumbered, the amount of the incumbrance is not to be deducted from the $2,000 homestead exemption, but that the claimant is entitled to this exemption over and above the incumbrance. Hoy v. Anderson, 39 Neb. 386, 58 N. W. 125. It follows, therefore, that the proceeds of the sale of the former homestead, having been, within six months from the sale, invested in the premises in controversy, after discharging the mortgage indebtedness, the homestead exemption continued in the present land. An injunction should therefore have been allowed restraining the present sale of the land levied upon unless the court was without authority to interfere with the proceedings being taken to enforce the judgment of the federal court. Quigley v. McEvony, 41 Neb. 73, 59 N. W. 767;Corey v. Schuster, 44 Neb. 269, 62 N. W. 470.

We think there can be no doubt that the court was without authority to enjoin the marshal from proceeding. Where goods have been seized by a federal court under a writ of attachment, a claimant of the property may not replevy them from the marshal in the state court. Freeman v. Howe, 24 How. 450;Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355;Summers v. White, 17 C. C. A. 631, 71 Fed. 106. It is true that it was held in Buck v. Colbath, 3 Wall. 334, that under such circumstances a claimant of the property may maintain trover in a state court against the marshal therefor. But Mr. Justice Miller in the latter case very clearly and satisfactorily distinguishes the two cases as follows: “Whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control for the time being; and no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose...