Beecher v. Gillett

U.S. Circuit Court for the District of Nebraska

Beecher v. Gillett

3 F. Cas. 61, 1 Dill. 308

CourtU.S. Circuit Court for the District of Nebraska

DecidedJuly 1, 1871

StatusPublished

This text of 3 F. Cas. 61 (Beecher v. Gillett) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beecher v. Gillett, 3 F. Cas. 61, 1 Dill. 308 (circtdne 1871).

Pincite

Opinion

DILLON, Circuit Judge.

The state court construed the statute of the state to authorize the substitution of the creditors as parties in the place of the sheriff, and if that ruling were before us for review, we are not prepared to hold that it was erroneous. St. Neb. 1867, p. 400, §§ 48, 49. The substitution of the parties for whom the sheriff acts “in lieu” of the sheriff, in an action brought against him for the recovery of personal property taken under execution, or for the proceeds of such property, is expressly provided for; and the extension of the right, by construction, to property taken under attachment is not! unreasonable, and was regarded by the state court as within the true meaning and purpose of the enactment. Such legislation is not unusual. Revision Iowa, 1860, § 2768; Gunn v. Gudehus, 15 B. Mon. 449.

Gillett & King were made defendants in lieu of the sheriff, who was discharged from all liability to the present plaintiffs. Upon this order being made, Gillett and King, who were citizens of another state, filed their petition in due form for the removal of the cause. They were nonresident creditors of Dale & Co., resident debtors. The latter made a sale of their property to the present plaintiffs, also residents iff Nebraska. The validity of this sale Gillett & King attacked by their attachment levy.

The adversary parties to the controversy are Gillett & King, of Illinois, on the one side, and the present plaintiffs, of Nebraska, on the other. By the order of the state court (which we must assume to be correct), Gil-lett & King were made the sole defendants on the record, and filed their petition for removal in due form, stating the existence of local influence and prejudice. This case is [62]*62distinguishable from Nye v. Nightingale, (1860,) 6 R. I. 439, decided under section 12 of the judiciary act, [1 Stat. 79,] where the resident officer was held to be not only a party, but a necessary party. In our judgment, the court properly ordered the removal, and the motion to remand is denied.

Motion overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

DILLON, Circuit Judge.

The state court construed the statute of the state to authorize the substitution of the creditors as parties in the place of the sheriff, and if that ruling were before us for review, we are not prepared to hold that it was erroneous. St. Neb. 1867, p. 400, §§ 48, 49. The substitution of the parties for whom the sheriff acts “in lieu” of the sheriff, in an action brought against him for the recovery of personal property taken under execution, or for the proceeds of such property, is expressly provided for; and the extension of the right, by construction, to property taken under attachment is not! unreasonable, and was regarded by the state court as within the true meaning and purpose of the enactment. Such legislation is not unusual. Revision Iowa, 1860, § 2768; Gunn v. Gudehus, 15 B. Mon. 449.

Gillett & King were made defendants in lieu of the sheriff, who was discharged from all liability to the present plaintiffs. Upon this order being made, Gillett and King, who were citizens of another state, filed their petition in due form for the removal of the cause. They were nonresident creditors of Dale & Co., resident debtors. The latter made a sale of their property to the present plaintiffs, also residents iff Nebraska. The validity of this sale Gillett & King attacked by their attachment levy.

The adversary parties to the controversy are Gillett & King, of Illinois, on the one side, and the present plaintiffs, of Nebraska, on the other. By the order of the state court (which we must assume to be correct), Gil-lett & King were made the sole defendants on the record, and filed their petition for removal in due form, stating the existence of local influence and prejudice. This case is [62]*62distinguishable from Nye v. Nightingale, (1860,) 6 R. I. 439, decided under section 12 of the judiciary act, [1 Stat. 79,] where the resident officer was held to be not only a party, but a necessary party. In our judgment, the court properly ordered the removal, and the motion to remand is denied.

Motion overruled.

Cite This Page — Counsel Stack

Bluebook (online)

3 F. Cas. 61, 1 Dill. 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beecher-v-gillett-circtdne-1871.