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Metcalf Brothers & Co., from taking any pointed now hold the proceeds thereof. This further proceedings under any judgment ob- order was made November 23, 1896. The tained by them in the supreme court of the action is still pending, undetermined. state of New York in a judgment creditors' "On the 22d day of October, 1896, and action, wherein certain transfers made by the 29th day of October, 1896, Metcalf the bankrupts had been set aside as to them Brothers & Co. procured judgments in the as fraudulent and void, and wherein receiv- supreme court of the state of New York ers of the property of the bankrupts ap- against the Lessers for $130.21 and $2,547.pointed by the said supreme court had been so respectively, upon which executions were directed to pay to them the amount of their issued and returned unsatisfied. judgments at law upon which their said “On the 17th day of December, 1896, Metjudgment creditors' action was founded. calf Brothers & Co. cominenced a judgment

"For its proper decision of the matter creditors' action in the supreme court of this court desires the instruction of the Su-l the state of New York, which came to trial preme Court upon the questions of law here on the 17th day of December, 1897, and as inafter stated, and hereby certifies the same a result of which the transfers to which to the Supreme Court of the United States reference has been made and the proceedings for that purpose.

for the appointment of the receivers were ad“Statement of Facts.

judged fraudulent and void as to them, "On the 2d of October, 1896, Lesser The court, however, set aside the transfers Brothers, subsequently adjudged bankrupts, of the copartnership property, not only in who were copartners, being then insolvent, favor of Metcalf Brothers & Co., but also transferred all their property, copartner in favor of the receivers. It set aside the ship and individual, to certain favored cred transfer of the real estate in favor of Metitors. All their outstanding accounts, be calf Brothers & Co. alone. Judgment was ing copartnership property, they transferred entered on this decision April 6, 1898. by instruments of assignment to Marcus A. "This judgment determined that the proAdler and others. They confessed various ceeds of the sale of the tangible property judgments in the supreme court of the state then in the hands of the receivers and the of New York in favor of Bernhard Moses outstanding accounts or their proceeds in and others, upon which executions were at the hands of the transferees (to be accountonce issued to the sheriff of the county of ed for under the judgment to the receivers) New York, who levied thereunder on all were to be administered by the receivers for their tangible personal property, consisting the benefit of all the creditors of the coof clothing material and stock in trade. partnership equally, including Metcalf. This also was copartnership property, and, Brothers & Co., while the real estate transwith the book accounts, comprised all their ferred * became subject to the lien of the property except a piece of real estate owned judgments of Metcalf Brothers & Co. on by Israel Lesser individually and a ground October 220 and 29th, 1896. lease of another piece of real estate owned “All parties except the receivers appealed by Tobias Lesser individually. These two from this judgment to the appellate division pieces of real estate the individuals owning of the supreme court of New York; that them conveyed to Joseph Lilianthal. court affirmed the judgment of the trial

"After making these transfers, and after court as to the fraud, but reversed it in so the levy by the sheriff under the executions far as it granted relief in favor of the reissued upon the confessed judgments, and ceivers. It directed the payment by the reon the same day, by a fraud upon the court, ceivers to Metcalf Brothers & Co. of the in a collusive action in the supreme court amount of their judgments out of the of New York to dissolve the partnership, money in the receivers' hands, and, since they procured the appointment of a receiver Metcalf Brothers & Co. were to be so paid, of the partnership property, Morris Moses, it reversed the judgments in their favor who was nominated by and in collusion with against Adler, one of the transferees of the them. Subsequently a receiver nominated accounts. Upon the ground that there was by certain creditors, James T. Franklin, no proof of fraud, it also reversed it against was associated with Mr. Moses by the same the transferee of the real estate. court

“This decision was embodied in an instru"Various creditors of the bankrupts im- ment made the 30th day of December, 1898, mediately commenced * actions of replevin entitled an 'order,' but which, after reciting to recover portions of the goods in the the necessary facts, 'ordered and adjudged' hands of the sheriff. Their claims were that the judgment of the trial term be conflicting with each other and with those modified as stated, and also 'ordered and of the confessed judgment creditors, and in adjudged' that the transfers in question, an action brought in the supreme court of except the transfer of the real estate, New York by the receivers an order was were fraudulent and void as to Metcalf made restraining the sale by the sheriff un- Brothers & Co.; that the receivers be, and der the executions, directing a sale by re- they were thereby, directed to pay to Metceivers (Mr. Moses and Mr. Franklin being calf Brothers & Co. the amount of their also appointed such receivers in that ac- judgments, with costs, and that final judg. tion), and that the latter should hold the ment should be entered in accordance thereproceeds of the sale ubject to the claims with. This instrument was filed in the ofof all parties, such claims to be determined fice of the clerk of the appellate division of in that action. Pursuant to this order, the the supreme court of New York, and was goods were sold, and the receivers so ap- the only paper signed by that court or kept



in its records. A certified copy of it was Brothers to be adjudged bankrupts, and transmitted to the clerk of the supreme that they bad not been brought into court court, upon which, after the costs had been on any process, or been given any notice of taxed, a final judgment was entered by the the order to show cause, except that their latter clerk on the 31st day of January, attorneys in their creditors' action had re1899, following in all essential respects its ceived a copy thereof, and especially that verbiage. The delay in the entry of final no statute conferred upon the district court judgment was caused by various motions be jurisdiction, power, or authority to issue fore the appellate division for reargument. any writ of injunction in the premises.

“On the 12th day of May, 1899, Lesser “Their objection was overruled, and after Brothers filed in the district court of the an argument of the merits of the applicaUnited States for the southern district of tion the injunction was continued. New York a petition to be adjudged bank- "Subsequently Metcalf Brothers & Co. rupts, and they were adjudicated bankrupts presented a petition to this court to super, on that day. Subsequently, and on the 7th intend and revise in matter of law the said day of June, 1899, Benjamin Barker, Esq., proceedings of the district court. was appointed their trustee in bankruptcy.

“Questions Certified. "From the judgment of the appellate di. "Upon the facts above set forth, the quesvision in the action brought by Metcalf tions of law concerning which this court deBrother & Co. all parties except Lilian- sires the instruction of the Supreme Court thal, the transferee of the real estate, ap- for its proper decision are: pealed to the court of appeals of the state "1. Had the district court of the United of New York. That court affirmed the States for the southern district of New judgment of the appellate division in favor York jurisdiction to make the injunction of Metcalf Brothers & Co., and also restored order in question? to them the rights awarded them by the "2. If said court had jurisdiction to re judgment of the trial court, of which they strain Metcalf Brothers & Co. from receiv. had been deprived by the appellate division. ing the fund in question, could such juris. The final result of the litigation was that diction be exercised by summary proceed. the transfers in question

declared ings ? fraudulent and set aside in favor of Met- *3. Did Metcalf Brothers & Co. by the calf Brothers & Co. only; that as to all commencement of their creditors' action acother persons they were (until impeached quire a lien on the property of the bank. in a proper action) valid; that the receivers rupts superior to the title of the trustee were directed to pay out of the funds in thereto? their hands to Metcalf Brothers & Co. the "4. If the lien acquired by the commence c.mount of their judgments, and that those ment of the creditors' action was inchoate creditors could also proceed for the collec- merely, was it perfected by a judgment obtion of their judgments, if necessary, tained more than four months prior to the against the transferees of the accounts and filing of the petition of the Lessers in bank. real estate.

ruptcy, within the meaning of the provisions “The decision of the court of appeals was of the act of Congress of July 1, 1898, made on the 6th of February, 1900. The known as the bankruptcy act? remittitur from that court to the supreme “5. If the lien acquired by the commence court was received and filed on the 12th day ment of the creditors' action was inchoate of March, 1900. On the 8th day of March, merely, was the judgment in the creditors' 1900, the bankrupts' trustee, upon affidavits action, whenever obtained, one which is of himself and his counsel, procured from avoided by any of the provisions of the act the district court of the United States for of Congress of July 1, 1898, known as the the southern district of New York an order, bankruptcy act” entitled in the bankruptcy proceeding, requiring Metcalf Brothers & Co. to show Mr. Nelson S. Spencer for petitioners. cause on the 13th day of March, 1900, why Alessrs. Otto T. Hess and M'Cready a writ of injunction should not issue en. Sykes for respondent. joining them from taking any further pro ceedings under any judgment in their cred. Mr. Chief Justice Fuller delivered the itors' action, and so enjoining them in the opinion of the court: interim. This order provided for its serv. Metcalf Brothers & Company, judgment ice upon the members of the firm of Met- creditors of Lesser Brothers, commenced calf Brothers & Co., but it was not in fact their creditors' suit in the supreme court served upon anyone but their attorneys in of New York December 17, 1896. The case their judgment creditors' action. Metcalf came to trial December 17, 1897, and decree Brothers & Co. appeared specially upon the was rendered April 6, 1898. 22 Misc. 664, return day of the order to show cause, and 50 N. Y. Supp. 1060. On appeal the appelfiled a written objection that the district late division affirmed the judgment of the court was without jurisdiction, power, or trial court in part, and reversed it in part, authority over them in the premises; that and directed the payment by the receivers no action or other proceeding was pending to Metcalf Brothers & Company of the or had ever been begun against them in any amount of their judgments out of the money way relating to the subject matter of the in the receivers' hands. 35 App. Div. 596, proposed injunction; that they had not ap- 55 N. Y. Supp. 179. This decree or judgpeared in or been made a party to any proment was embodied in an order dated De ceeding founded upon the petition of Lesser'cember 30, 1898, but the clerk of the su

. 172


preme court appears not to have entered it if incorrect, that question should be adre until January 31, 1899. The decision of swered in the affirmative the court of appeals (161 N. Y. 587, 56 N. Doubtless the lien created by a judgment E. 67), was made February 6, 1900, and the creditor's bill is contingent in the sense remittitur was received and filed in the that it might possibly be defeated by the court below March 12, 1900.

event of the suit, but in itself, and so long The bankruptcy law was approved July as it exists, it is a charge, a specific lien, 1, 1898. May 12, 1899, Lesser Brothers on the assets, not subject to being devested filed their petition in bankruptcy and were save by payment of the judgment sought to adjudicated bankrupts, and Barker was ap be collected. pointed trustee June 7, 1899. March 8, *The subject was fully discussed, and the * 1900, the bankrupts' trustee procured from effect of bankruptcy proceedings considered, the district court an order entitled in the by Vice Chancellor Sandford in Storm v. bankruptcy proceedings requiring Metcalf Waddell, which has been so repeatedly recBrothers & Company to show cause on ognized with approval as to have become a March 13 why a writ of injunction should leading case. not issue enjoining them from taking any As Mr. Justice Swayne remarked, in Mil. further proceedings under any judgment in ler v. Sherry, the commencement of the suit their creditors' action, and so enjoining amounts to an equitable levy (2 Wall. 240, them in the interim, which injunction, after 17 L. ed. 830), or, in the language of Mr. argument on the merits, was continued. No Justice Matthews, in Freedman's šao. & T. question arises here in respect of real es. Co. v. Earle: “It is the execution first be tate, and on the case stated in the certifi. gun to be executed, unless otherwise regu. cate the property affected was equitable as- lated by statute, which is entitled to priori. sets. There had been tangible personal ty.

The filing of the bill, in cases property, subject to levy and sale under ex. of equitable execution, is the beginning of ecution, but this had been previously sold executing it.” 110 U. S. 717, 28 L. ed. 304, by an order of the supreme court of New 4 Sup. Ct. Rep. 230. And the right to pay. York, and the proceeds were held by receiv ment out of the fund so vested cannot be af.

fected by a subsequent transfer by the debtThe general rule is that the filing of a or (M’Dermutt v. Strong, 4 Johns. Ch. judgment creditors' bill and service of pro- 687), or taken away by a subsequent discess creates a lien in equity on the judg. charge in bankruptcy. Hill v. Harding, 130 ment debtor's equitable assets. Miller v. U. S. 699, 32 L. ed. 1083, 9 Sup. Ct. Rep. Sherry, 2 Wall. 237, 17 L. ed. 827; Freed. 725; Doe v. Childress, 21 Wall. 642, 22 L man's Sav. & T. Co. v. Earle, 110 U. 8. 710, ed. 549; Eyster v. Gaff, 91 U. S. 521, 23 L 28 L. ed. 301, 4 Sup. Ct. Rep. 226. And ed. 403; Peck v. Jenness, 7 How. 612, 12 L such is the rule in New York. Storm v. ed. 841. Waddell, 2 Sandf. Ch. 494; Lynch v. John. Kittredge v. Warren, 14 N. A. 509, was son, 48 N. Y. 27; First Nat. Bank v. Shuler, relied on as to the effect of attachments on 153 N. Y. 163, 47 N. E. 262. This was con mesne process in New Hampshire, in Peck ceded by the district court, but the court v. Jenness. And it may be remarked that held that the lien so created was "contin-Chief Justice Parker's vigorous discussion gent upon the recovery of a valid judgment, in that case of the point that the attachand liable to be defeated by anything that ment lien was not contingent on a subsedefeats the judgment, or the right of the quent judgment is a fortiori applicable in complainants to appropriate the fund;" cases where the prior establiahment of the that "such a contingent or equitable lien, it creditor's claim is the foundation of the is evident, cannot be superior to the judg. creditor's suit. ment on which it depends to make it effec- Granting that possession of the power “to tual, but must stand or fall with the judg- establish uniform laws on the subject of ment itself;" and "g 67f, therefore, in de bankruptcies” enables Congress to displace claring that a judgment recovered within these well-settled principles and to devest four months 'shall be deemed null and void,' rights so acquired, we do not think that etc., necessarily prevents the complainants Congress has attempted to do so. from acquiring any benefit from the lien, or Section 67f provides: “That all levies, the fund attached, except through the trus- judgments, attachments, or other liens, obó tee in bankruptcy pro rata with other cred. tained through legal proceedings against a itors,” it being also held that, although the person who is insolvent, at any time within judgment at special term was rendered more four months prior to the filing of a petition than four months before the filing of the in hankruptcy against him, shall be deemed petition, yet that the judgment of the appel- null and void in case he is adjudged a bankiate division, as affirmed by the court of ap: judgment, attachment, or other lien shall be

rupt, and the property affected by the levy, peals, was within the four months. 100 deemed 'wholly discharged and released Fed. 433.

from the same, and shall pass to the trustee Assuming that the judgment at special as a part of the estate of the bankrupt, unterm is to be disregarded, and that the judg: less the court shall, on due notice, order ment of the appellate division was entered that the right under such levy, judgment, within the four months, it will be perceived attachment, or other lien shall be preserved that if the views of the district court were for the benefit of the estate; and thereupon correct, the third question propounded the same may pass to and* shall be preserved should be answered in the negative, while' by the trustee for the benefit of the estato as

aforesaid. And the court may order such In Peck v. Jenness, 7 How. 612, 12 L. ed. conveyance as shall be necessary to carry 841, the district court had decided that the the purposes of this section into effect? lien of an attachment issued out of a court (30 Stat at L. 565, chap. 541, U. 8. Comp. of New Hampshire was defeasible and inBtat. 1901, p. 3418.)

valid as against an assignee in bankruptcy. our opinion the conclusion to be drawn But this court held that this was not so, from this language is that it is the lien cre- and that the district court had no superated by a levy, or a judgment, or an attach: visory power over the state courts, and Mr. ment, or otherwise, that is invalidated, and Justice Grier said: "It is a doctrine of that where the lien is obtained more than law too long established to require a citafour months prior to the filing of the peti. tion of authorities, that, where a court has tion, it is not only not to be deemed to be jurisdiction, it has a right to decide every null and void on adjudication, but its validi- question which occurs in the cause, and ty is recognized. When it is obtained with whether its decision be correct or otherwise, in four months the property is discharged its judgment, till reversed, is regarded as therefrom, but not otherwise. A judgment binding in every other court; and that, or decree in enforcement of an otherwise where the jurisdiction of a court, and the valid pre-existing lien is not the judgment right of a plaintiff to prosecute his suit in denounced by the statute, which is plainly it, have once attached, that right cannot be confined to judgments creating liens. If arrested or taken away by proceedings in this were not so the date of the acquisition another court. These rules have their foun. of a lien by attachment or creditor's billdation, not merely in comity, but on neceswould be entirely immaterial.

sity. For if one may enjoin, the other may Moreover, other provisions of the act ren- retort by injunction, and thus the parties der it unreasonable to impute the intention be without remedy; being liable to a proto annul all judgments recovered within cess for contempt in one, if they dare to four months.

proceed in the other.

The facts By $ 63a, fixed liabilities evidenced by therefore, that an injunction issues only to judgments absolutely owing at the time of the parties before the court, and not to the the filing of the petition, or founded upon court, is no evasion of the difficulties that provable debts reduced to judgments after are the necessary result of an attempt to the filing of the petition and before the con- exercise that power over a party who is a sideration of application for discharge, may litigant in another and independent forum." be proved and allowed, while under § 17 The rule indicated was applied under then judgments in actions of fraud are not re- act of 1841 in Clarke v. Rist, 3* McLean, leased by a discharge, and other parts of the 494, Fed. Cas. No. 2,861; under the act of act would be wholly unnecessary if § 67f 1867, by Mr. Justice Miller in Johnson v. must be taken literally.

Bishop, Woolw. 324, Fed. Cas. No. 7,373, Many of the district courts have reached and by Mr. Justice Nelson in Sedgwick v. and announced a similar conclusion (Re Menck, 6 Blatchf. 156, Fed. Cas. No. 12,Blair, 108 Fed. 529; Re Beaver Coal Co. 110 616, and under the act of 1898, among other Fed. 630; Re Kavanaugh, 99 Fed. 928; Re cases, by the circuit court of appeals for the Pease, 4 Am. Bankr. Rep. 547); as have fourth circuit in Frazier v. Southern Loan also the supreme court of Rhode Island and & T. Co. 40 C. C. A. 76, 99 Fed. 707, and the chancery court of New Jersey in well. Pickens v. Dent, 45 C. C. A. 522, 106 Fed. considered decisions. Doyle v. Heath, 22 R. 653. 1. 213, 47 Atl. 213; Taylor v. Taylor, 59 N. White v. Schloerb, 178 U. S. 542, 44 L J. Eg. 86, 45 Atl. 440. And see Wakeman ed. 1183, 20 Sup. Ct. Rep. 1007, proceeded v. Throckmorton, 74 Conn. 616, 51 Atl. 554. on the familiar doctrine that property in

As under $8 70a, e, and g 67e, the trustee the custody of a court of the United States is vested with the bankrupt's title as of the cannot be taken out of that custody by any date of the adjudication, and subrogated to process from a state court, and the jurisdio the rights of creditors, the foregoing consid- tion of the district court sitting in bank. erations require an affirmative answer to ruptcy by summary proceedings to mainthe third question, but in answering the tain such custody was upheld. Mr. Justice first question some further observations Gray, speaking for the court, said: "By must be made. This creditors' action was $ 720 of the Revised Statutes, U. S. Comp. commenced December 17, 1896, more than Stat. 1901, p. 581, 'the writ of injunction eighteen months before the passage of the shall not be granted by any court of the bankruptcy act, and was prosecuted with United States to stay proceedings in any exemplary diligence to final and complete court of a state, except in cases where such success in the judgment of the court of ap: injunction may be authorized by any law peals. At this point the bankruptcy court relating to proceedings in bankruptcy. intervened and on summary proceedings en. Among the powers specifically conferred joined Metcalf Brothers & Company from upon the court of bankruptcy by $ 2 of the receiving the fruits of their victory. The bankrupt act of 1898 are to (15) make state courts had jurisdiction over the par- such orders, issue such process, and enter ties and the subject matter, and possession such judgments, in addition to those specifi. of the property. And it is well settled that cally provided for, as may be necessary for where property is in the actual possession the enforcement of the provisions of this of the court this draws to it the right to act.' 30 Stat. at L. 546, chap. 541, U. 8. decide upon conflicting claims to its ulti-Comp. Stat. 1901, p. 3418. And by clause mate possession and control.

3 of the twelfth general order in bankruptcy


applications to the court of bankruptcy 'for Messrs. J. J. Darlington and Joseph an injunction to stay proceedings of a court A. Burkhart for defendants in error. or officer of the United States, or of a state, shall be heard and decided by the judge;

Mr. Chief Justice Fuller delivered the but he may refer such an application, or opinion of the court: any specified issue arising thereon, to the

This is a writ of error to a judgment of referee to ascertain and report the facts.' the court of appeals of the District of Co 172 U. S. 657, 43 L. ed. 1191, 18 Sup. Ct. lumbia, affirming certain orders of the suRep. VI. Not going beyond what the deci- preme court of the District, holding a spesion of the case before us requires, we are cial term for orphans' court business, adof opinion that the judge of the court of mitting a will and codicil to probate and bankruptcy was authorized to compel per: granting letters testamentary thereon; and sons, who had forcibly and unlawfully seized denying a motion to vacate that decree. and taken out of the judicial custody of

Plaintiffs in error filed a caveat to the that court property which had lawfully probate and record of the writings purportcome into its possession as part of the bank. ing to be the will and codicil, and issues, adrupt’s property, to restore that property to dressed to both, as to mental capacity, fraud its custody.”

or coercion, and undue influence, were This cautious utterance and courts must framed for trial by jury. be cautious when dealing with a conflict of Trial was had, and on the conclusion of jurisdiction-sustains as far as it goes the the evidence the court, at the request of the converse of the proposition when presented caveatees, instructed the jury that there was by a different state of facts.

no evidence tending to show fraud, undue We are of opinion that the jurisdiction of influence, or coercion, and that on these isthe district court to make the injunction sues the jury should render its verdict for order in question cannot be maintained. the caveatees. To which the caveators made Louisville i'rust Co. v. Comingor, 184 U. S. no objection, and preserved no exception. 18, 26, 46 L. ed. 413, 416, 22 Sup. Ct. Rep. Three instructions in respect of the mental 293.

capacity of the deceased to make a valid The first question will be answered in the will or codicil were given on behalf of the negatire, and the third question in the af- caveators as requested by them. firmative, and it is unnecessary to answer The jury returned a verdict June 15, 1900, the other questions.

in favor of the caveatees. No motion for a Certificate accordingly.

new trial was made within four days as required by rule 53 of the court, or prior to

June 26, when the court entered an order (187 U. S. 159)

and decree admitting the will and codicil to HELEN C. RAUB, Charles D. Collins, probate, and granting letters testamentary Lewis E. Collins, et al., Piffs. in Err., thereon, from which an appeal was taken to

the court of appeals. HELEN C. CARPENTER, Helen K. Brem- Several exceptions were reserved to the erman, Edmund H. Brown, et al. rulings of the court in the progress of the

trial, which were disposed of by the court Witnesses-expert testimony undisclosed of appeals satisfactorily, as we think. But

factsjudgments-motion to vacate for one of them has been pressed on our attenincompetency of juror.


Dr. George B. Heinecke, a practising phy. 1. An expert witness cannot base his opinion sician in Washington, and a grandnephew

as to the mental capacity of a testator upon of deceased, testified that he had known de his personal knowledge of any undisclosed ceased ever since he could recollect, and was

facts concerning the testator's condition. accustomed to seeing him frequently; that 2. The refusal of the trial court to vacate a he had seen him when recovering from at

decree because of the incompetency of a tacks of epilepsy subsequently to the execu-juror, frst discovered after verdict and tion of the will and codicil; "that testator Judgment, is not an abuse of its discretion had stated to him that he was a sufferer from* in the premises, where the verdict rendered urethral calculus; that on the 13th of March was the only one wbich could be rendered 1896, he had seen the testator have a faintconsistently with the facts.

ing spell;" "that he had on one occasion seen (No. 64.]

testator laughing to himself; that on or

about the 13th of February, 1899, during the Argued November 3, 4, 1902. Decided De blizzard, the testator acted peculiarly about cember 1, 1902.

the snow in his yard; did not know how it

got in there, all of it, and went out there I

N ERROR to the Court of Appeals of the and tried to get it removed;” and witness ment which affirmed a decree of the Su-cause of death. He was then asked the fol. preme Court of the District admitting a lowing question: "Doctor, have you formed will to probate, and an order denying a mo any opinion, from your uncle's general con. tion to vacate such decree. Affirmed. dition of health and the conditions disclosed

See same case below, 17 App. D. C. 505. by his brain at this investigation, and from The facts are stated in the opinion. ail you know about him yourself, what his

Messrs. Victor H. Wallace and condition of mind was?" Charles Poe for plaintiffs in error.

To that portion of the question which

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