# Gumbel v. Pitkin U S

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United States Supreme Court
124 U.S. 131
Gumbel v. Pitkin U S
This case was before this court on a motion to dismiss the writ of error, the result of which is reported in 113 U.S. 545, 5 Sup. Ct. Rep. 616. It is now here for final disposition upon its merits.
It appears by the record that a number of creditors of Joseph Dreyfus brought several actions at law against him as a citizen of Louisiana in the circuit court of the United States for that district, the plaintiffs being citizens of other states, in which writs of attachment were issued and levied upon the stock of goods belonging to him contained in a store and warehouse, No. 33 Tchoupitoulas street, in the city of New Orleans. In these actions judgments were rendered in favor of the several plaintiffs, and proceedings were had in them whereby the attached property in the hands of the marshal was sold, and the proceeds brought into the court for distribution. Pending these proceedings, and before an actual sale under the order of the court, Cornelius Gumbel, a citizen of Louisiana, the present plaintiff in error, filed a petition, called, according to the practice in that state, a 'petition of intervention and third opposition.' In that petition he shows that o October 27, 1883, he instituted a suit in the civil district court for the parish of Orleans against Joseph Dreyfus, and obtained therein a writ of attachment, which he alleges was executed by a seizure of the defendant's property, being the same as that levied on by the marshal in the actions in the circuit court; that, subsequently, judgment was rendered in his favor for the amount of his claim and interest, on which a writ of fi. fa. was issued to the sheriff of said civil district court, directing the seizure and sale of the same property to satisfy his judgment; that the sheriff was obstructed in the execution of said writs, and the petitioner prevented from realizing the fruits thereof by the fact that the property subject to his attachment is in the actual custody of the marshal of the United States. The petition particularly sets out the facts constituting a conflict of jurisdiction to be that, on the morning of the twenty-ninth of October, 1883, when it was claimed that the sheriff had made his levy under the petitioner's writ of attachment, he found at the store, claiming to exercise rights of possession and control, deputy marshals of the circuit court in charge as keepers, and in execution of writs of attachment issued from that court; that at the time of the seizure made by the sheriff no valid or legal writ had issued from the circuit court; that the writ or writs under which the marshal or his deputies were holding and claiming to hold the property had been issued on Sunday, October 28, 1883, and were absolutely null and void, both by common law and the statute law of Louisiana; that said writs, so issued on Sunday, on account of their illegality, were discontinued and abandoned by the plaintiffs in the several suits in which they had been issued; that other writs, subsequently issued in the same actions, were issued to the marshal, and under them he detained the property, which, however, in the mean time had become subject to the seizure under the petitioner's writ in the hands of the sheriff. The petition prays that the property in the custody of the marshal then advertised for sale should be restored to, and placed in the hands of, the civil sheriff, to be sold under the petitioner's writs of execution, in order that the proceeds might be distributed by the civil district court, or, if sold by the marshal, that the proceeds of the sale be ordered to be paid over to the civil sheriff, to be distributed by the civil district court, and also 'for such other and further aid, remedy, and relief as the nature of the case may require and law and equity permit.' This petition of intervention was filed by leave of the court, and with it a transcript of the proceedings in the civil district court in the case of Gumbel v. Dreyfus. The motion of the intervenor for a stay of the marshal's sale of the goods levied on was denied, and thereupon, on January 21, 1884, by leave of the circuit court, an amended and supplemental petition of intervention was filed by him, and also, on the eighth of March, 1884, a second supplemental petition. In these, the petitioner claims that if it be held in fact and in law that the marshal of the circuit court had effected a seizure of the property attached, which vested the jurisdiction of the circuit court as to its disposition and the distribution of its proceeds, and rendered impossible any actual seizure or physical control over the property by the civil sheriff, the intervenor is entitled to have his attachment recognized by the circuit court, and to share in the distribution of the proceeds of the property according to priority of time of seizure under the laws of the state; and alleges that, in addition to the efforts made and proceedings had in behalf of the intervenor, the United States marshal had been served with interrogatories as garnishee, and in every legal and practicable way notified of the writ held by the sheriff, whereby a valid seizure was effected on petitioner's behalf, to take rank ac ording to the time at which it was thus executed, and claims, in consequence, to be entitled to payment out of the fund in preference to all other attaching creditors.
The attaching creditors, plaintiffs in the circuit court, were made parties to these petitions of intervention, to which they appeared and answered. The cause came on for hearing in the circuit court, and judgment was rendered therein dismissing the petitions of intervention and distributing the entire fund in court, being the proceeds of the sales of the attached property, to the other parties plaintiff in the attachments in that court. The facts in relation to the levies under the attachments are found by the court as follows, (20 Fed. Rep. 426:) 'Various creditors had obtained attachments on Sunday in this court which were also levied on Sunday. The same and other creditors obtained attachments in several suits, also in this court, some early Monday morning, shortly after midnight, and others between 8 and 10 o'clock A. M., which were also levied upon the same property. The intervenor had obtained his writ from the state court on Saturday. Early Monday morning, shortly after midnight, and while the marshal was holding possession of the property under the Sunday writ alone, the sheriff came to the store where the property was situated for the purpose of serving the writ, and demanded entrance, which the marshal refused. The sheriff placed his keepers around the building, and guarded the same continuously down to the time of the sale, and served notice of seizure, and subsequently process of garnishment, upon the marshal in charge of the store (before the service of any of the Monday writs) who had executed the process of attachment from this court. The marshal preserved his possession without interruption from the moment of seizure down to the time he sold the property under the Monday writs, the Sunday writs having been abandoned. The property seized was the wines and brandies, etc., the stock of a wholesale liquor store.'
The grounds of law on which the circuit court denied the right of the intervenor to participate in the distribution of the proceeds of the sale are stated, as a conclusion of law, as follows: 'As to the effect of what was done by the sheriff, nothing is before the court except the proceeds of a sale. They, and they alone, can have an award who show title; and, since all claim under process against the property of a common debtor, those alone who show a levy of the process upon the property. For in this state the issuance and existence of the process create no lien. It disposes of this part of the case to say that the sheriff made no seizure, no caption of the property; its possession was withheld from him; and access to it was forcibly denied him. Whether this was done under color of good or bad writ, or without any writ, all seizure was prevented and no lien was effected. This would end the case of the intervenor, as to any privilege upon the fund, unless he can maintain that the marshal, holding under color of a writ from this court, can be made to hold also under a writ from the state court, subsequently served by the garnishment process. The authorities for this proposition cited are Patterson v. Stephenson, (unreported,) decided by the supreme court of Missouri at the April term, 1883, and Bates v. Days, 17 Fed. Rep. 167. Those cases are put by the courts which decided them upon a statute of the state of Missouri, which was deemed to have been adopted by the practice act of congress regulating the procedure in the federal courts. In Louisiana we have no such statute, and there is, therefore, no need to discuss the question as to what would be the legal consequences if one existed. In this state, the courts are to be guided by the doctrine which is settled by the cases of Hagan v. Lucas, 10 Pet. 400, and Taylor v. Carryl, 20 How. 583, to the effect that when property susceptible of manual delivery has been seized and is held by the officer of and under process from the court of one jurisdiction, it is incapable to be subjected to seizure by another officer of and under process from the court of another jurisdiction. The authorities are collated in Wilmer v. Railroad Co., 2 Woods, 427, 428. It follows, then, that since the goods were, and continued to be, in the physical possession and custody of the marshal, under writs of this court, the intervenor could have acquired and did acquire no interest in the goods under his writ from the state court, and he can have no claim to the proceeds arising from their sale.'
Proceeding further in its judgment to determine the order of priority of the creditors who attached under the writs from that court, the circuit court said: 'No right is claimed, and no right could have been acquired, under the Sunday writs or seizures. The statute prohibits (Code Pr. art. 207) the institution of suits and all judicial proceedings on Sunday. The question, then, is as to the priority of the attachments which were issued on Monday, i. e., after 12 o'clock on Monday morning.' The judgment then proceeds to award priority among these writs according to the order in which they were levied, after they came into the possession of the marshal, by him. On the trial of the issues upon the petitions of intervention, as appears by a bill of exceptions in the record, the intervenor offered in evidence a transcript of the proceedings and judgment of the civil district court for the parish of Orleans in the suit in which he was plaintiff, against Dreyfus, to the introduction of which the defendants objected. From that transcript it appears that by a petition in that cause it was alleged that Pitkin, the marshal of the United States for the Eastern district of Louisiana, was indebted to the defendant, or had property and effects in his possession, or under his control, belonging to the defendant, wherefore it was prayed that Pitkin, as marshal, be made garnishee, and ordered to answer under oath the accompanying interrogatories filed therewith. A citation was issued thereon to Pitkin requiring him to answer the interrogatories, which, according to the sheriff's return, was, together with a copy of the original and supplemental petition and interrogatories in the cause, served on Pitkin in person on October 29, 1883, at 25 minutes past 12 A. M. The sheriff's return to the writ of attachment is as follows: 'Received October 27, 1883, and on the twenty-ninth day of October, 1883, proceeded to execute this writ against the movable property of def't, described more fully in my notice of seizure, when I found the said property in possession of the U.S. marshal, and by instructions of pl't'ff's atty. placed my keepers on the sidewalk in front of said property, and kept them continually, both night and day, until January 25, 1884, when they were withdrawn by order of the pl't'ff's atty.; also, made general seizure by garnishment in the hands of J. R. G. Pitkin, marshal of the U.S. dist. court; from said general seizure nothing has as yet come into my possession or under my control, and this return is made up to date for the purpose of enabling the clerk of this court to complete a transcript of appeal.'
It further appears from the transcript that on November 7, 1883, Pitkin appeared in the civil district court, as garnishee, without answering the interrogatories, and excepted to the jurisdiction of the court. On November 16, 1883, judgment was rendered by the civil district court in favor of Gumbel and against Dreyfus for the sum of $23,184.57, with interest from October 24, 1883, 'with lien and privilege on the property herein attached, and that plaintiff's claim be paid by preference over and above all other creditors, with costs of suit.'
On December 6, 1883, a rule was granted by the civil district court upon Pitkin, requiring him to show cause why he should not desist from interference with the sheriff in the custody of the attached property, or be punished for contempt of the court in obst ucting the execution of its orders and judgments; and also a rule was granted December 17, 1883, upon the marshal, jointly with the attaching creditors, in the circuit court of the United States, requiring them to show cause why the property seized, under the attachment issued at the suit of Gumbel, should not be sold, and the proceeds of the sale distributed in that cause. On January 4, 1884, some of the defendants to that rule, without answering the same, excepted to the jurisdiction of the court, on the ground 'that it is incompetent to either sell the property, or determine the rank of the attaching creditors, or distribute the proceeds of said property, for the reason that the said property was in the hands of the United States marshal under attachment issued by order of the judge of the circuit court of the United States for the Eastern district of Louisiana at the time of said pretended seizure by the civil sheriff.' On January 14, 1884, the transcript of the record shows the following entry: 'The rule and exception herein fixed for this day was by consent of counsel ordered to be continued indefinitely.'
Chas. F. Buck and G. H. Braughn, for plaintiff in error.
J. A. Gilmore, T. J. Semms, Wm. A. Maury, Thos. L. Bayne, W. D. Denegre, and George Denegre, for defendants in error.
[Argument of Counsel from pages 139-143 intentionally omitted]
Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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