Moran v. Sturges/Dissent Brewer

Mr. Justice BREWER, dissenting.

While I agree with nearly all that is said in the opinion, I am unable to concur in the conclusions finally reached, and the judgment ordered. I agree that 'it is a rule of general application that, where property is in the actual possession of one court of competent jurisdiction, such possession cannot be disturbed by process out of another court;' and I may say that I agree, further, that, when a court has possession of property, it may restrain the bringing of any suit in any other court to disturb that possession, and that an order for such restraint operates upon all persons within its jurisdiction, and can be enforced, if need be, by proceedings as for a contempt. But I disagree with my brethren as to the matter of possession. In the opinion of the court the possession of the officer is deemed the important matter. I submit that that is significant only as it bears upon the question of possession by the court. No one would pretend that the act of a marshal or a sheriff in taking possession of property would have any significance, unless it were in the execution of some order of the court. If the proceeding is, of itself, such as to put the property into the possession of the court, that is enough, and there is no need of inquiry as to whether the officer of the court has in fact placed his hand upon it. Now, the statutory proceeding instituted by this insolvent corporation-a creature of the state of New York-involved a surrender of its property to the possession of the court. Such is the construction placed by its highest court upon the statutes of New York; and that construction, it seems to me, is binding upon this court. It is only in harmony with views that have been expressed by judges of the federal courts. The bankrupt act of congress authorized voluntary proceedings in bankruptcy, as to the statutes of New York authorize voluntary proceedings on the part of its corporations in insolvency. In Re Vogel, 7 Blatchf. 19, Fed. Cas. No. 16,982, a question was presented as to the jurisdiction of the bankruptcy court, as against that of a state court, whose officers, in obedience to a writ of replevin, had taken manual possession of the property before any officer of the former court had touched it; and the court held that from the time of the filing of the petition in bankruptcy the jurisdiction of that court over the property attached. I quote the language of District Judge Blatchford. whose opinion was sustained by Mr. Justice Nelson:

'It is manifest from these provisions that, when a voluntary petitioner in bankruptcy files his petition in due form, he becomes, eo instanti, a bankrupt, so far as any interference with the property named in his inventory is concerned, and that such property is thereby brought into the bankruptcy court, and placed in its custody, and under its protection, as fully as if actually brought into the visible presence of the court. Being in the custody of the bankruptcy court, no other court, and no person acting under any process from any other court, can, without the permission of the bankruptcy court, interfere with it, and to so interfere is a contempt of the bankruptcy court.'

Believing that the rule thus stated is the one to be applied in this case, I hold that, when the petition in insolvency was filed, the corporation, the owner and possessor of the property, surrendered it to the state court, and by no subsequent proceedings in any other court could that possession be disturbed.

I cannot agree that the respective jurisdiction of state and federal courts is to be determined by a scramble between sheriff and marshal for possession.

For these reasons, while I concur in most of the reasoning of the opinion, I am constrained to dissent from the judgment.

I am authorized to say that Mr. Justice WHITE concurs in the foregoing views.