Seligman v. M. Ferst & Co. , 57 Ga. 561 ( 1876 )

Bleckley, Judge.

Notwithstanding the views indicated by this court in 52 Georgia Reports, 371, and 55 Ibid., 547, in reference to injunctions by the federal courts in connection with their bankruptcy jurisdiction, it is still urged that there is no authority of law for granting any such injunction. If, indeed, none can be granted,-then it cannot be necessary to obtain any. It follows that, in a proper case for turning over a fund, it should be turned over on due application for it, without any injunction. If this court has gone Wrong heretofore in treating an injunction as a part of the assignee’s or trustee’s remedy to reach the' fund, the correction of the error would not be to hold that there is no remedy, but that injunction is no part of it.

1. If injunction can be granted at all, that it need not be founded on a final decree in the federal court and thus be declared perpetual, is hardly doubtful. To wait for such an injunction before surrendering the fund, if, on the record evidence presented to the state court, the fund ought to be surrendered, would seem to be over-ceremonious. Doubtless, the chief, if not the only value of injunction, is to indicate a claim of right on the part of the federal jurisdiction to administer the fund for itself, free from the agency of the state tribunal. This purpose is served as soon as an injunction is granted vdth a direct view to causing the fund to be withdrawn, for federal administration in bankruptcy.

2. The iund in the hands of the receiver of Chatham superior court being legal and not equitable assets, (see 18 Georgia Reports, 66, 67,) the seizure of the same, though by a court of equity, was in the nature of attachment, more especially as that seizure was made to satisfy legal and not purely equitable causes of action, and- took place before the debtors themselves were made parties to the bill. It is true, the bill was amendable, and it was amended by making these persons parties; but this occurred after the adjudication in bankruptcy, and, consequently, after their title to the assets had been divested. When the trustees now. claiming the fund were appointed, their title related back to the adjudication. That title they could enforce by action if the assets were in the hands of any private person ; but they cannot, or need not, sue the receiver, who holds them for the court, and, therefore, their remedy is by petition to the court whose officer the receiver is. Theirs, as appeal's from an inspection of the record, is the true legal title, and that title goes back behind the real, effective commencement of suit in Chatham superior court against the bankrupts. When the bankrupts were sued in personam, they had no title whatever.- A decree against them in that suit ought not to dispose of assets to which they had no title when they were made parties, if the trustees, as they have done, come forward and assert their claim. In view of the special nature of the case, and as this is the second time it has been before us, we dispose of it by directing as set out in the second head-note.

Judgment reversed.