Dissenting Opinion: Harlan, J. Minnesota. If intended to embrace writs of attachment from a court of the United States, so as to vacate levies under such writs, without an order to that effect by the court under whose authority they were made, it would be inoperative. No State enactment can, proprio vigore, work the dissolution of an attachment issuing from a Federal court. A different construction is inadmissible upon other grounds. By the 10th section of the statute it is provided that "No creditor of any insolvent debtor shall receive any benefit under the provisions of this act, or any payment of any share of the proceeds of the debtor's estate unless he shall have first filed with the clerk of the District Court, in consideration of the benefits of the provisions of this act, a release to the debtor of all claims other than such as may be paid under the provisions of this act, for the benefit of such debtor, and thereupon the court or judge may direct that judgment be entered discharging such debtor from all claims or debts held by creditors, who shall have filed such releases." If this act is to control the rights of the parties in the present case, the result is, that the prior right acquired by Lapp & Flershem under their suit and attachment in the Federal court is taken from them, and they are denied all interest in the proceeds as well of the property attached for their benefit as of the property assigned to Bennett, unless they give a release in full to their debtors. Such a result is not, in my judgment, consistent with the rights secured by the Constitution of the United States to the plaintiffs in error. 2. There is some misapprehension as to the time when the assignment to Bennett was actually made. But it is clear from the evidence that the marshal levied before he acquired any right in the property attached by that officer. In the brief filed in behalf of Bennett in the Circuit Court, in support of his application to be made a party in the suit of Lapp & Flershem against Van Norman & Bro., in order that he might assert his claim, as assignee, to the goods seized by the marshal, and in support also of his motion to dissolve the attachment sued out by Lapp & Flershem—which brief is part of the record before us -it is said: "The court will bear in mind Dissenting Opinion: Harlan, J. that the assignment was not made and filed until some three hours after the levy of the attachment by the plaintiffs [Lapp & Flershem]." And in the opinion of the Supreme Court of Minnesota in this case, it is said: "It seems that prior to the making of the assignment in question the defendant, as United States marshal, by virtue of process of the Circuit Court, had attached the assigned property." As the Federal court had jurisdiction of the suit in which was issued the attachment that came to the hands of the marshal, the goods seized by the latter were, from the moment of such seizure, in the custody of that court, so far, at least, as to prevent the possession of the marshal from being disturbed by an action of replevin in behalf of Bennett. Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 334; Krippendorf v. Hyde, 110 U. S. 276; Covell v. Heyman, 111 U. S. 176; Gumble v. Pitkin, 124 U. S. 131, 145. It was said in Lammon v. Feusier, 111 U. S. 19, that even where a marshal takes the property of a person not named in the writ, "the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing;" and that "according to the decisions of this court the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ is issued." 3. If Bennett's right to the possession of the property covered by the assignment to him had accrued before the marshal made his levy, the latter might have been liable in trespass or in trover and conversion in any court of competent jurisdiction as to parties. Here, however, the attachment, which came to the hands of the marshal, was lawfully issued and was rightfully levied. That is conceded on all sides. Was it for that officer to pass upon the validity of a claim which accrued, if at all, subsequently to his taking the goods into his possession? His writ commanded him to take the goods of Van Norman & Bro.; and he did so. He was also commanded to safely keep them to satisfy the demand of Lapp & Flershem. Could he be discharged from his obligation to so keep them except by an order of the court under whose direction he had proceeded? Indeed, if he had surrendered possession, without Syllabus. leave first obtained from the Federal court, he could have been proceeded against for contempt in having parted with the possession of goods in the custody of that court. Bennett asked leave to intervene in the suit in the Federal court, and such leave was granted; but he declined to exercise the privilege accorded to him. He moved, at the same time, to dissolve the attachment, and that motion was denied; the. Federal court thereby plainly indicating to the marshal a purpose to hold the property until it had adjudicated Bennett's claim. If Bennett had intervened in the suit in the Federal court, and if that court had dismissed his intervention, or adjudged his claim to be subordinate to that of Lapp & Flershem under their attachment, he could have prosecuted an appeal to this court. Gumble v. Pitkin, 113 U. S. 545. A marshal who levies an attachment from a Circuit Court of the United States in a suit of which it has complete jurisdiction, upon goods subject at the time to such attachment, is not, I think, liable in trover and conversion for their value, upon his refusal, in the absence of any direction of the court under whose writ they were seized, to surrender possession; especially to one whose right, if any, accrued subsequently to his levy. To hold him, under such circumstances, liable to a suit in a state court for damages, is to invite those conflicts. between courts of different jurisdictions and their respective officers, which the former decisions of this court have sought to prevent. DANVILLE v. BROWN. ORIGINAL MOTION IN A CASE PENDING IN THIS COURT ON APPEAL STATES FOR THE No. 1109. Submitted November 26, 1888. - Decided December 3, 1888. In computing the "sixty days after the rendition of judgment," allowed by Rev. Stat. § 1007 to a party appealing from a judgment of a Circuit Court to give the security required by law, Sundays are excluded. Opinion of the Court. MOTION to vacate a supersedeas. The case is stated in the opinion. Mr. Frank P. Clark for the motion. Mr. George C. Cabell and Mr. H. H. Marshall opposing. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. This is a motion to vacate a supersedeas, "for the reason that the bond was not filed within the time prescribed by statute." The decree was entered March 29th, 1888, and concludes as follows: "And the defendant, the town of Danville, prays an appeal from the aforesaid decree in open court, and it is allowed, and if a supersedeas is desired the amount of the bond is fixed at one hundred thousand dollars." On the 31st of May the appeal bond of the town in the sum of one hundred thousand dollars was duly approved by the circuit judge, and citation signed; but the bond was not filed in the clerk's office until June 1st. Appeals from the Circuit Courts are "subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error." Rev. Stat. § 1012. Section 1007 of the Revised Statutes reads thus: "In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ or [of] error, by lodging a copy thereof for the adverse party in the clerk's office, where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward, with the permission of a justice or judge of the appellate court." The bond here was filed within sixty days, excluding Sundays, and the appeal was thereby perfected; but it is contended that the exclusion of Sundays by the words of the statute Opinion of the Court. applies only to the lodging of the copy of the writ of error or the taking of the appeal, and not to the giving of security to operate as a supersedeas. We do not think so. The service of the writ of error must be within sixty days, "Sundays exclusive;" and the party appealing may, "having served his writ of error as aforesaid," give the security required by law to stay process upon the judgment "within sixty days" after the rendition of such judgment, or afterward, by special permission. This can only mean that he may give the security and so obtain the supersedeas within the same sixty days which is allowed him to serve the writ, or otherwise he would not have the time specifically allowed by the statute for such service. At common law Sunday was dies non juridicus, and no strictly judicial act could be performed upon that day; and this was recognized in the Judiciary Act, which expressly excluded Sundays in the computation of the ten days within which a supersedeas could be obtained. 1 Stat. c. 20, §§ 22, 23, pp. 84, 85. By the 11th section of the act of June 1, 1872, 17 Stat. 198, c. 155, it was provided "that any party or person desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within. sixty days after the rendition of such judgment, decree, or order, or afterward with the permission of a justice or judge of the said appellate court." This enlarged the ten days to sixty, and permitted security to be given afterward, provided, however, that the writ had been served or appeal taken within the sixty days. Kitchen v. Randolph, 93 U. S. 86. And when these provisions were carried into the Revised Statutes in § 1007, the words "Sundays exclusive" of the original act, being re-enacted in the first clause of the section, became clearly applicable to the second also. As the bond was given in the amount specified in the decree, and was approved and filed in time, the motion to vacate the supersedeas will be Denied. |