Tefft v. Sternberg
| Decision Date | 27 July 1887 |
| Citation | 40 F. 2 |
| Parties | TEFFT et al. v. STERNBERG et al., (two cases.) |
| Court | U.S. District Court — Southern District of Georgia |
Walter R. Brown, Wimbish & Gilbert, and Francis D. Peabody, for Tefft, Weller & Co.
Hill & Harris, for Dunham, Buckley & Co.
Peabody Brannon & Hatcher and L. F. Garrard, for defendants.
Separate bills were filed by the plaintiffs, citizens of New York against Sternberg & Loewenherz, an insolvent firm of Columbus, in this district, with averments which, if proven under repeated decisions of this court, make an unquestionable case for the appointment of a receiver to take charge of the assets of the insolvent firm, and to hold them, subject to proper disposition by the final decree of the court, for the satisfaction of the creditors. A temporary injunction having been granted, it appeared on the hearing of the rule to show cause why an injunction proper should not issue, and a receiver be appointed, that the entire stock of the merchandise of the respondents, Sternberg & Loewenherz, amounting in value to about $150,000, had been taken in charge by J. G. Burrus, sheriff of Muscogee county and of the superior court of the state of Georgia for that county, by virtue of the foreclosure of several chattel mortgages made by the insolvent firm to certain preferred creditors. These mortgages, in the aggregate, did not exceed the sum of $31,566; but it appeared that various other creditors had placed in the hands of the sheriff other mortgages amounting to $15,415, and, under the provisions of a state statute, (Code, Secs. 3969, 3977,) claimed the right to share in the distribution of the fund to be raised by the sale of the merchandise levied upon under the chattel mortgage fi. fa. Certain other creditors had sued out garnishment against the sheriff to subject any balance in his hands to their debts, and, subsequently to the filing of the bills and to the issuance of the temporary injunction by this court, a bill similar to those pending here had been presented to the Honorable JAMES M.
SMITH, the judge of the superior court of Muscogee county, Ga., by which an injunction and the appointment of a receiver were sought before that tribunal. It appeared further that, after the satisfaction of the mortgages which had been foreclosed under the state law, and also the mortgages which had been placed in the hands of the sheriff to share in the fund, all of which last-mentioned mortgages were left with the sheriff before the litigation here began, there will be large values in the hands of the sheriff which it is insisted are subject to distribution by this court, and which its receiver, when one is appointed, would be entitled to have for the benefit of the creditors who have sought this forum to enforce their rights.
On the hearing the complainants were, at once, confronted with the proposition that the foreclosure of the chattel mortgages, and the seizure of the stock by the sheriff, had given absolute and exclusive jurisdiction of the subject-matter to the court of the state, and that the court of the United States could not, with judicial propriety, interfere; and upon this proposition a great many authorities were cited, among them Diggs v. Wolcott, 4 Cranch, 179; section 720, Rev. St.; Dial v. Reynolds, 96 U.S. 340; Hagan v. Lucas, 10 Pet. 400; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 451; Chapin v. James, 23 Amer.Rep. 412. The plaintiffs, in reply to the obvious weight of these authorities, pressed with much force the argument that the foreclosure of a chattel mortgage upon an ex parte affidavit, and the subsequent sale of the mortgaged property, as directed by the Georgia statute, do not constitute 'proceedings in any court of a state,' and they also maintained that the custody of the property by the sheriff was not the custody of the state court. They relied upon the case of Weil v. Calhoun, 25 F. 865, where Judge McCAY held, in the circuit court for the northern district of Georgia, that, where the ordinary of a county is required by a special statute to examine the returns, count the votes, and declare the result of a local election, his action in this regard is not such a 'proceeding of a court' as will inhibit an injunction from a federal court. A stronger case is that of Carpenter v. Talbot, 33 F. 537, where it was held that a foreclosure sale by a public officer, under a chattel mortgage, is not a proceeding in a state court, within the meaning of section 720, Rev. St. There seems, however, to be a palpable distinction between the Vermont statute, in contemplation of which the decision in Carpenter v. Talbot was made, and the Georgia statute, under which the chattel mortgages here were foreclosed. The former provides that, where the condition of the mortgage is broken, the mortgagees may cause the mortgaged property to be sold 'at public auction, by a public officer. ' The Georgia statute requires the mortgagee to go before some officer authorized to administer an oath, and, having made affidavit of the amount of principal and interest due on the mortgage, to annex the affidavit to the mortgage, and file both in the office of the clerk of the superior court in the county where the mortgagor resides, etc. It shall then be the duty of the clerk to issue an execution directed 'to all and singular the sheriffs and coroners of this state,' commanding the sale of the mortgaged property to satisfy the principal and interest, together with the cost of proceedings to foreclose the said mortgage. The sheriff then proceeds to advertise and sell, as in other judicial sales. The mortgagor may avail himself of his defenses. These are presented by an affidavit of illegality to the execution. When this affidavit is filed, the levying officer, by direction of the statute, shall postpone the sale, and return all the proceedings and papers in the case to the court from which the execution issued to be tried by a jury, etc.
Now can it be doubted that this is a proceeding in a court of the state? It is altogether unlike the foreclosure in the case from Vermont. Indeed, the Code of Georgia (section 3504) providing that an affidavit which is the 'foundation of a legal proceeding' cannot be amended, the supreme court of the state, in the case of Rich v. Colquitt, 65 Ga. 115, held that the affidavit as to the principal and interest due on a mortgage, under section 3971, was not amendable, it being, of course, the ...
To continue reading
Request your trial
-
Johnson v. The American Surety Company of New York
...U.S. 340; Sargent v. Helton, 115 U.S. 348; Hutchinson v. Green, 6 F. 838; Rensalier v. Green, 6 F. 617; Wagner v. Drake, 31 F. 850; Teft v. Stemberg, 40 F. 2; Maloney v. Mass. Assn., 53 F. 209. (b) of a court over a cause does not terminate with a judgment, but continues until its satisfact......
-
Cobe v. Ricketts
... ... 40, 33 ... L.Ed. 94, 9 S.Ct. 705; Watson v. Jones, 80 U.S. 679; ... Walker v. Flint, 7 F. 435; Davis v. Life ... Assn., 11 F. 781; Tefft v. Sternberg, 5 L.R.A ... 221, 40 F. 2; Judd v. Telegraph Co., 31 F. 182; ... Nellson v. Robinson, 31 F. 634; In re ... Schuyler's Boat Co., 136 ... ...
-
In re Macon Sash, Door & Lumber Co.
... ... public when concurrent jurisdiction between its courts ... exists. Many cases might be cited, but Tefft v ... Sternberg, 40 F. 2, 5 L.R.A. 221, will suffice. Here, ... however, we have seen, not only that there is no concurrent ... or co-ordinate ... ...
-
Pitkin & Brooks v. Burnham, Hanna, Munger & Company
...officer holding another process against the same debtor. 1 Freeman, Executions [3d ed.], sec. 135; Murfree, Sheriffs, sec. 269; Tefft v. Sternberg, 40 F. 2; Covell Heyman, 111 U.S. 176, 28 L.Ed. 390, 4 S.Ct. 355; Hagan v. Lucas, 10 Peters [U.S.] 400; Stationery & Paper Co. v. Case, supra. I......