Daniels v. Lazarus

65 F. 718, 1894 U.S. App. LEXIS 3146

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 31, 1894
• Status: Published

Opinion

LACOMBE, Circuit Judge.

I concur in the opinion expressed by Judge Patterson, namely, that after the order of November 20, 1894, had been made and entered in this court, the property therein described was discharged from its custody, and open to new process from the state court, although the marshal had not yet actually turned it over to Daniels, the claimant. No order, therefore, should be made interfering with the custody of the property while in the hands of state officers under process of the state court. Examination of the papers, however, has impressed me with the conviction that the replevin suit is a collusive one, gotten up in aid of a. fraudulent attempt by Lefavour and Lazarus to obtain possession of property belonging to one or other of the complainants. Diversity of citizenship gives to this court jurisdiction of the controversy, and until the case is tried, and the facts finally determined, upon proofs, after opportunity for cross-examination, these defendants should not be allowed to take possession of the property. Complainants may therefore take an order for an injunction pendente lite against Lefavour and Lazarus, forbidding them from taking, receiving, or disposing of the property in controversy.