Marceline State Bank v. Smith ( 1906 )

ELLISON, J.

Plaintiffs instituted this action against E. H. Smith and Mrs. E. H. Smith and sued out an attachment in aid. There were several grounds alleged for the attachment, but on trial of the plea in abatement only one was sustained, viz., that the defendants were about to remove from the State with intent to change their domicile. No property Avas attached belonging to Mrs. Smith and the attachment was dismissed as to her. The attachment writ was executed as to E. H. Smith by the sheriff on the 10th of February, 1905, summoning J. E. Howe as garnishee by declaring in writing to him that he attached in his hands all money, .property and effects belonging to E. II. Smith. At the May term, 1905, regular, interrogatories were filed and propounded to Howe as to whether he had Smith’s property in his hands, etc. Howe filed his answer to such interrogatories at the same term, denying that he had any property of Smith’s or that he owed him anything.

Afterwards, the trial court made a finding and rendered judgment. In such finding and judgment it was found that the attachment hy garnishment was served more than four months prior to a beginning of proceedings in bankruptcy by said E. H. Smith, hut no judgment against the garnishee had then been rendered. The contest between the parties is as to the effect to be given to the bankruptcy proceedings found, by the trial court to have been taken by E. H. Smith, as just set out.

It is the law that where a creditor has a lien against property of his debtor-, which was a lien more than four months prior to the beginning of a proceeding-in bankruptcy, and he begins proceeding in a State court to enforce it before bankruptcy proceedings are begun, he may proceed to enforce his lien in the State court, though the proceedings in the State court were begun within four months of the proceedings in bankruptcy. Thus, a creditor with a mechanic’s lien may so proceed notwithstanding the after proceedings in bankruptcy. [Seibel v. Siemon, 62 Mo. 255.] One acquires an equitable lien against his debtor’s property by filing his creditor’s bill and serving process; and so if he files such bill and obtains service of process more than four months prior to proceedings in bankruptcy, he may proceed to a finality in the State court notwithstanding after proceedings in bankruptcy. [Metcalf v. Barker, 187 U. S. 165.] Plaintiffs assume that they had an attachment lien against defendant’s property antedating the proceeding in bankruptcy more than four months. But while the attachment writ was executed more than four months prior to the proceedings in bankruptcy, yet it was éxeeuted, not by an actual seizure of property, but by summoning a debtor of the defendant, as garnishee. That manner of executing a writ of attachment does not create a lien under the laws of this State. [McGarry v. Lewis Coal Co., 93 Mo. 237.] While the seizure of property under an attachment writ creates a lien, a mere garnishment does not. The cases of Marx v. Hart, 166 Mo. 503, and Pepperdine v. Bank, 100 Mo. App. 387, are not applicable to the facts of this case and do not, in any way, announce anything contrary to what we have here written. In the former, the proceeding involved sureties whereas it was the principal who was discharged in bankruptcy; and, besides the garnishment had ripened into a judgment (thereby becoming a lien) more than four months before proceedings in bankruptcy. This fact does not appear by any direct statement to that effect, but-is clearly inferable from the face of the case. Tn the latter case, though judgment was rendered within four months of the beginning of proceedings in bankruptcy, an attachment lien was obtained more than four months before such proceedings by an actual seizure of property.

The view of the trial court was in accord with the law and is affirmed.

All concur.