Majority
p. 179SUPREME COURT. The Tenth National Bank, agt. Edmund P. Sanger, &c. First Department, General Term, Dec., 1871. Before Ingraham & Barnard, J. J.
Headnote
A United States’ bankrupt court cannot enjoin this court. In the execution of process, when jurisdiction is acquired, the supreme court is absolute in the control of its own orders and decrees.The bankrupt court has no control over the acts or judgments of this court. The order of this court is a complete protection to the sheriff for all purposes in the bankrupt court.
This was an appeal from an order at special term directing the sheriff to pay to plaintiff moneys arising from the sale of property of defendants, levied upon under executions. The levies were made Jan. 12th, 1871. On February 11, 1871, the sheriff was served with an order from the U. S. district court, in bankruptcy, wherein all persons were enjoined and restrained from disposing of, or interfering in any manner with the property of the alleged defendants, against whom a petition in bankruptcy had that day been filed. On Mar. 11,1871, the bankrupt court made an order, whereby the sheriff was permitted to sell the property still in his custody, and to hold the proceeds in lieu-thereof. The property was'thereupon regularly sold by the sheriff under the executions, and the proceeds, less expenses of sale, &c., $8,910, were held by him, and were insufficient to pay in full the executions. The sheriff and judgment creditors were then made co-defendants in a suit brought by the assignees in bankruptcy, to set aside the executions and levies, and to obtain these moneys. The bankrupt court was moved in the bankruptcy proceedings for an
p. 180Argued that the injunctions and orders of the district court were binding upon the sheriff and plaintiff; and that the bankrupt court had power to enjoin and control the sheriff as to property of bankrupt (14 Stat. at Large, 538, secs. 1 & 40); that the refusal to modify the injunction was binding upon plaintiff (People agt. Sturtevant, 9 N. Y., 263 ); and that the sheriff is entitled to hold the moneys for his own indemnity, pending the suit against him (Rowland agt. Baker, 21 Wend., 264 ). Argued that the injunction only applied to the property of the bankrupts which passes to the assignee, and that property is always subject to existing liens (Honsberger agt. Zibelin, 2 B.R., 33 ); that it did not apply to the lien in question, or to the sheriff; that a court having once acquired jurisdiction may continue it, except by superior authority; that the state court, or its officers cannot be enjoined (10 U. S. Stat. 334, sec. 5; Diggs agt. Wolcott, 4 Cr., 119; In re Swartwout, Ibid.; Peck agt. Jenness, 7 How, 625 ; Atkinson agt. Purdy, Crabbe, 556; Johnson agt. Bishop, 1 Walworth, 326, &c). The sheriff must account to the court of which he is an officer, in the execution of its process.
order to permit the sheriff to pay over the money to the judgment creditors, which motion was denied. Upon these facts, the plaintiff herein then applied for, and October 16, 1871, obtained, an order, at special term of this court, directing the sheriff to pay over to plaintiff what had been realized on the executions. From this order the sheriff appealed to the general term.
J. Sterling Smith, for the sheriff.
H. Edwin Tremain, for plaintiff.
The bankrupt court cannot
p. 181
enjoin this court. In the execution of process, when jurisdiction is acquired, the supreme court is absolute in the control of its own orders and decrees. We do not believe that congress intended that the bankrupt court should have any control over the acts or judgments of this court. Is not the order of this court a complete protection to the sheriff for all purposes in the banKrupt court ? We think it is. We think the order was right, and should be affirmed.
Order affirmed, with costs.
Cabdozo, justice, took no part in the decision, he having made the order appealed from.
The principle in this case was followed in the case of Weld agt. O’Brien, decided at the same general term.