Gatell v. Millian

2 F.2d 365, 1924 U.S. App. LEXIS 2052

• Court: Court of Appeals for the First Circuit
• Decided: November 14, 1924
• Docket: 1692
• Status: Published

Opinion

PER CURIAM.

The referee in bankruptcy was without jurisdiction to restrain the prosecution of the proceeding in the District Court of Humaeao, and bis order to that effect was null and void, as such restraining order could only be issued by the United States District Judge. Metcalf v. Barker, 187 U. S. 165, 176, 23 S. Ct. 67, 47 L. Ed. 122; Pickens v. Roy, 187 U. S. 177, 23 S. Ct. 78, 47 L. Ed. 128; General Order in Bankruptcy, XII (3).

The attachment made more than four months prior to the filing of the petition in bankruptcy created a valid lien. Yumet & Co. v. Delgado, 243 F. 519, 156 C. C. A. 217. The judgment, execution, and sale of the attached land within the four months and prior to the filing of the petition in bankruptcy were in enforcement of the lien acquired prior to the four months’ period, and were valid notwithstanding the subsequent adjudication. Metcalf v. Barker, supra; Yumet & Co. v. Delgado, supra.

The appellee having, on the record before ns, acquired all the rights of the execution creditor and purchaser at the sale became the owner of the land with the right of immediate possession, and the District Court was right in ordering the trustee forthwith to surrender possession to the appellee and to abstain from interfering with her therein.

There can bo no doubt as to the power of the District Court, on petition of the appellee (the real owner), to order the trustee to surrender the possession which the trustee had taken, and this without regard to whether the proceeding was summary or plenary.

The decree of the District Court is affirmed, with costs to the appellee.