Weisenfeld v. Mispelhorn

• Decision Date: 31 July 1871
• Citation: 5 W.Va. 46
• Court: West Virginia Supreme Court
• Parties: M. Weisenfeld &, Co. v. M. Mispelhorn et aL

5 W.Va. 46

M. Weisenfeld &, Co.

v.M. Mispelhorn et aL

Supreme Court of Appeals of West Virginia.

July Term, 1871.

The assignment of bankrupt effects relates back to the commencement of proceedings in bankruptcy; therefore, by operation of law, all attachments on mesne process, of the property of the debtor, made within four months next preceding the commencement of the proceedings, are dissolved.

The opinion of Maxwell, J., contains the material details of a statement of this case.

C. J. Faulkner for appellants, Stanton & Allison for appellees,

Maxwell, J. Weisenfeld & Co. brought an action of assumpsit in the circuit court of Berkeley county against F. Mispelhorn, and during the pendency of the suit sued out an attachment against the estate of the said Mispelhorn, which was served upon, one G. W. Mispelhorn, a person designated by the plaintiffs as having goods and debts due the defendant in his hands. Henry Weisenfeld filed his petition claiming the property in the hands of the garnishee, claimed by the plaintiffs to belong to the defendant as his property, and moved to dissolve the attachment because it was sued out within four months next preceding the commencement of proceedings in bankruptcy by the defendant, under the act of Congress of the United States, entitled "An act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. The attachment was sued out on the 29th day of December, 1868, and it appears from a bill of exceptions in the record that the defendant filed his petition in bankruptcy on the 28th day of December, 1868, and that on the 3d day of February, 1869, an assignee was appointed, who accepted the appointment, and that on the same day an assignment of bankrupt's effects was made to him. Upon this state of the case, the court quashed the attachment, and the appellants say this is error. The bankrupt act provides that the assignment of the bankrupt's effects to an assignee shall relate back to the commencement of proceedings in bankruptcy, and therefore, by operation of law, the title to all such property and estate, both real and personal, shall cest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings.

The attachment was dissolved by the act of Congress, and the court could do nothing but dismiss it. It is claimed that there is...