¶1There is nothing shown to impeach the bona fides of the judgment, execution, and levy. No collusion in regard to them appears, and the bankrupt resisted them to his utmost. The lien of a levy made under an execution issued on a final judgment, such as is that in the present case, provided such lien attached before the commencement of the proceedings in bankruptcy, is preserved by the-bankruptcy act, and is to be respected by this court, whether this court takes to itself the administration of the property on which the lien is imposed, and applies it towards the satisfaction of the lien, pr whether it allows the state officer, who is executing the state process, to do so. In this case, the property has been sold, and the proceeds of it are in the hands of the sheriff. No advantage can result from requiring the money to be paid into this court, with a view to its application by this court in satisfaction of the lien on the property. An order will be entered allowing the sheriff to apply the proceeds of the sale of the property towards the dis*283charge of the amount which he is required by the execution to make, including his charges and fees thereon, and directing him to pay the overplus, if any, to the assignee of the bankrupt, if there be one, and, if there be none, then to the clerk of this court, to the credit of the bankrupt’s estate.
3 F. Cas. 282
In re Bernstein
U.S. District Court
Decided December 15, 1867
U.S. District Court · decided 1867-12-15
<p>Case No. 1,350.</p> <p>INVOLUNTARY BANKRUPTCY — LlEN OF JUDGMENT Entered before the Bankruptcy Proceedings.</p> <p>1. Where, before proceedings were taken in involuntary bankruptcy, a judgment was entered against the bankrupt in a state court, by default, on which an execution was issued and a levy made, and the bankrupt unsuccessfully endeavored to have the judgment, execution, and levy set aside, and the sheriff then advertised the property for sale, but was stopped by an injunction from the bankruptcy court, which injunction was, on a representation that the goods were perishable, modified so as to allow the sheriff to sell, directing him to hold the proceeds subject to the order of this court, and the sheriff sold them, and an application was then made to dissolve the injunction, there being no impeachment of the bona fides of the judgment, execution, and levy: Held, that the lien of the levy was preserved by the bankruptcy act and should be respected by this court.</p> <p>[Cited in Re Wright. Case No. 18.065; Re Dev. Id. 3,870; Hudson v. Schwab, Id. 6,835.]</p> <p>[Sec Barnes v. Billington, Case No. 1.015; In re Wilbur, Id. 17,633; Goddard v. Weaver, Id. 5.495; Webster v. Woolbridge, Id. 17,340; Witt v. Hereth, Id. 17,921.]</p> <p>2. That the sheriff should be directed to apply the proceeds of the property in his hands to the satisfaction of the execution, paying the overplus to the bankrupt’s assignee, or, if there was no assignee, to the clerk of the court.</p> <p>[Cited in Thames v. Miller, Case No. 13,860; Re Hufnagel, Id. 6,S37.]</p> <p>[3. Cited in Re Wright, Case No. 18,065; Re Mallory, Id. 8.991; Re Brinkman, Id. 1,884; Hudson v. Schwab, Id. 0.S35, to the point that the district court, sitting as a court of bankruptcy, has power to enjoin a sheriff of a state court from proceeding to sell property on which he has levied under an execution issued out of a state court before proceedings in bankruptcy were commenced.]</p>
Decided 1867-12-15