Prugh v. Portsmouth Savings Bank

• Decision Date: 06 May 1896
• Docket Number: 6550
• Citation: Prugh v. Portsmouth Savings Bank, 48 Neb. 414, 67 N.W. 309 (Neb. 1896)
• Parties: EVA M. PRUGH, APPELLANT, v. PORTSMOUTH SAVINGS BANK ET AL., APPELLEES
• Court: Nebraska Supreme Court

67 N.W. 309

48 Neb. 414

EVA M. PRUGH, APPELLANT, v. PORTSMOUTH SAVINGS BANK ET AL., APPELLEES

No. 6550

Supreme Court of Nebraska

May 6, 1896

APPEAL from the district court of Douglas county.Heard below before FERGUSON, J.

AFFIRMED.

Andrew Bevins, for appellant.

John W Lytle, contra.

OPINION

IRVINE, C. J.

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.Section 16, chapter 36, Compiled Statutes, 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, 65 U.S. 450, 24 HOW 450, 16 L.Ed. 749;Covell v. Heyman, 111 U.S. 176, 28 L.Ed. 390, 4 S.Ct. 355;Summers v. White, 71 F. 106.)It is true that it was held in Buck v. Colbath, 70 U.S. 334, 3Wall. [U. S.], 334, 18 L.Ed. 257, 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 that 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 process has first taken possession, or some superior jurisdiction in the premises.* * * Whenever the litigation is ended, or the possession of the officer or court is discharged, other courts are at liberty to deal with it according to the rights of the parties before them, whether those rights require them to take possession of the property or not.* * * It is obvious that the action of trespass against the marshal in the case before us does not interfere with the principle thus laid down and limited.The federal court could proceed to render its judgment in the attachment suit, could sell and deliver the property attached, and have its execution satisfied without any disturbance of its proceedings, or any contempt of its process, while, at the same time the state court could proceed to determine the questions before it involved in the suit against the marshal without interfering with the possession of the property in dispute."The line is thus very clearly drawn.A state court may not, after a federal court has acquired jurisdiction of property, interfere with the exercise of that jurisdiction; but it may entertain independent actions among the same parties, or other parties, provided they do not interfere with the jurisdiction, custody, or process of the federal court.When land has been levied upon, it is as much in the custody of the court, and under the control of its process, as when personal property has been seized on execution or in attachment; and the state court was, therefore, without any authority, by injunction or otherwise, to interfere with the marshal in the...