Haber v. Klauberg

• Decision Date: 13 February 1877
• Parties: FERDINAND A. HABER, Plaintiff in Error, v. FREDERICK R. KLAUBERG et al., Defendants in Error.
• Court: Missouri Court of Appeals

3 Mo.App. 342

FERDINAND A. HABER, Plaintiff in Error,

v.FREDERICK R. KLAUBERG et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Feb. 13, 1877.

1. The jurisdiction of a State court in attachment cases is not ousted by proceedings in bankruptcy unless properly pleaded in the State court.

2. A State court will not take judicial notice of proceedings in the Federal courts.

3. A bond given under section 48, page 90, Wagner's Statutes, dissolves an attachment, but a bond given under section 24, page 186, does not.

ERROR to St. Louis Circuit Court.

Reversed and remanded.

Nat. Myers, for plaintiff in error, cited: Weed v. Dills et al., 34 Mo. 483; Johnson v. Bishop, 8 N. B. R. 533; Kent v. Downing, 10 N. B. R. 538; Valliant v. Childers, 11 N. B. R. 320; Hecht v. Wassell, 27 Ark. 413; Cutler et al. v. Evans, 115 Mass. 27.

John G. Chandler and James M. Loring, for defendants in error, cited: Bankrupt Act, secs. 14, 21; 4 C. L. J. 9; Wag. Stat. 186-191, secs. 24, 41, 48.

BAKEWELL, J., delivered the opinion of the court.

The plaintiff commenced suit in the Circuit Court of St Louis County, by attachment against one Friedlander, and levied upon goods in the possession of Friedlander, who at once gave a forthcoming bond to the sheriff, with defendants as his sureties. There was final judgment against Friedlander, and an order for the production of the property, which was not obeyed; and plaintiff sues on the forthcoming bond.

The answer of the defendants avers that proceedings in bankruptcy were introduced against Friedlander in the District Court of the United States for the Eastern District of Missouri, within four months of the suing out of the attachment, in the course of which Friedlander was adjudicated a bankrupt, the plaintiff proved his debt, and one of the attorneys of plaintiff was appointed assignee, and the goods attached thereupon passed into his possession and were administered upon by him.

To this portion of the answer plaintiff demurred; the demurrer was overruled, and, plaintiff refusing to plead over, there was final judgment on the demurrer, and plaintiff appeals to this court.

It is claimed by plaintiff that the attachment was dissolved by giving the bond sued upon; but in that he is wrong. The bond that dissolves an attachment is that given under the 48th section of the act (1 Wag. Stat. 190), when the defendant, having filed his plea in abatement, gives a counter-bond and moves to dissolve. This bond was under section 24 of the act; and it is settled that the lien remains after it is given. Evans v. King, 7 Mo. 411.

The State court, however, had complete jurisdiction in the attachment suit; and, unless its jurisdiction was ousted by mere operation of law so soon as proceedings in bankruptcy were commenced, in the absence of fraud it would seem that its judgment is conclusive. Friedlander having been ordered to produce the property, no notice to, or demand upon, his sureties was requisite. Weed v. Dills et al., 34 Mo. 483. They must obey that order at their peril.

But to hold that the jurisdiction of the Circuit Court was ousted without any notice of proceedings in bankruptcy would be to establish a rule of which it may at least be said that it would be contrary to the comity proper between courts, and productive, besides, of grave inconvenience.

The Circuit Courts of Missouri are certainly not bound to take notice of proceedings in the District Courts of the United States; the latter are more numerous than the States of the Union; and if a proceeding in bankruptcy, by virtue of section 5044 of the United States Statutes, ousts the Circuit Courts of this State of jurisdiction in an attachment suit against the same debtor, commenced within four months, the State courts can never know what they are doing, and can never have the least assurance that any particular judgment rendered by them, however regular upon its face, is not an absolute nullity, and each execution a mere delusion and snare.

And accordingly, in Arkansas, it was held (Hecht v. Wassell, 27 Ark. 412)-- where property was attached and sold, and the assignee in bankruptcy appeared by attorney and moved to be substituted as defendant, and also filed motions to have the attachments dissolved and the proceeds of the sale turned over to him--that the facts set up in these motions were matters in abatement, and should have been pleaded in an issuable shape; and the motions were denied.

In Cutter v. Evans, 115 Mass. 27, it is held that, in the absence of fraud or collusion, a judgment against a defendant in an action is conclusive evidence against both him and a surety on a bond to dissolve an attachment; and that, to avoid such a judgment, it is not sufficient to show that in the original action the defendant was, while it was pending, adjudicated a bankrupt under the laws of the United States, and that plaintiff proved his claim against his estate in bankruptcy, and that defendant's bankruptcy was noted on the docket of the court in which the original action was pending, and that one of plaintiff's counsel was chosen assignee in the bankruptcy proceedings. But the court held that the fact of bankruptcy and the proving of plaintiff's claim should have been pleaded in bar, or a stay of proceedings obtained. And in Johnson v. Bishop, 8 N. B. R. 533, on appeal to the Circuit Court of the United States for the Eighth Circuit, Mr. Justice Miller says: “It may be true that the attachments (in the State court) have ceased to have any binding force; but whether they have or not is the question, and that question depends, not upon a proposition of law here argued before us, but also upon two questions of fact--that is, whether Loeb has been adjudicated a bankrupt, and whether he was the only member of the firm of Loeb & Co. Of the principle of law...