Simpson v. Van Etten
Decision Date | 10 May 1901 |
Docket Number | 27,36. |
Citation | 108 F. 199 |
Parties | SIMPSON v. VAN ETTEN. SAME v. DEPUE. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Edward J. Fox, for plaintiff.
W. S Kirkpatrick for defendants.
Lester T. Smith and William Dusenberry, co-partners, were on March 21, 1899, upon the petition of certain of their creditors adjudged to be bankrupts by the district court of the United States for the district of New Jersey. On April 14, 1899, Ora C. Simpson, plaintiff in these cases, was appointed, and he now is trustee of the said bankrupts. On December 21, 1897 John and James P. Van Etten, the defendants in one of the present suits, filed in the prothonotary's office of a Pennsylvania court a judgment note of Smith & Dusenberry dated December 20, 1897, for the sum of $600. No execution however, was issued upon the judgment which was entered thereon until January 14, 1899, when a fieri facias was levi ed upon personal property. The sherrif's sale in pursuance of this writ occurred on the 21st and 23d of January, 1899, and, of the amount realized from that sale, $639 was paid to the said John and James P. Van Etten in satisfaction of their judgment. On January 14, 1899, Mary J. Depue, defendant in the other of these cases, caused a similar judgment to be entered against Smith & Dusenberry on a judgment note dated March 12, 1898, and on the same day upon which that judgment was entered a writ of fieri facias was issued thereon. In his return to this latter writ the sheriff referred to the return in the case of John and James P. Van Etten, and out of the proceeds of the sale of personal property heretofore mentioned the sheriff paid $543.70 to Mary J. Depue. The plaintiff, as trustee, seeks to recover in the actions now under consideration the sums of money paid as has been stated to the respective defendants, and he bases his claim to do so upon the contention that inasmuch as the sheriff did not make any levy until the 14th of January, 1899, which was within the period of four months prior to the adjudication of bankruptcy, all the proceedings under the levies were null and void, and that consequently the fund realized belongs to the trustee for the creditors of the bankrupts. To support this contention the learned counsel for the plaintiffs has relied exclusively upon section 67, cl. 'f,' of the bankruptcy act of 1898, and therefore that clause alone need be considered. It is as follows:...
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