Lefavour v. Whitman Shoe Co.

65 F. 785, 1894 U.S. App. LEXIS 3147

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

Opinion

LACOMBE, Circuit Judge.

Joseph denies under oath that he was aware of the facts, winch were manifestly within the knowledge of the plaintiff. He may be given the benefit of the doubt, and as to aim the motion is denied. The writ of attachment commanded the sheriff to attach and safely keep so much of the property within the county, which the defendant had or might have at any time before final judgment in the action, as will satisfy plaintiff’s demand. In obedience to such writ, the sheriff, by his deputy, presented himself at the premises No. 98 Duane street, where the business of the defendant was conducted, and, serving the notice required by law, attached all personal property there found, including "all books of account, vouchers, and papers relating to the property, debts, credits, and effects of said defendant.'’ Lefavour appears to have been present on this occasion, and to have himself pointed out to the sheriff the property, books, papers, etc., levied upon. It is no doubt true that the sheriff did not give to the several individuals and firms who were indebted to defendant the notice required by the New York Code, which, if served, would have made them liable should they thereafter pay such debts to any one except the sheriff or his proper representative. So far as the defendant was concerned, however, or any one claiming through the defendant with full knowledge of all the facts, levy was complete when the books and papers were taken into the custody of the sheriffs, and the defendant’s representative notified thereof. It appears that subsequent to the levy defendant has collected some of the money due to the defendant, enumerated in its books, and which he perfectly well knew was included within the writ and notice; and this money he collected as the representative and former business manager of the defendant. In so doing he has acted in disobedience of the writ, which ordered that the property should be safely kept by the sheriff. The removal of the cause to this court makes it the vindicator of the writ which, by section 4 of the judiciary act of 1875, is declared after removal to hold the goods or estate attached or sequestered to abide final judgment in this court. As to debts due to the defendant, therefore, which were collected by Lefavour prior to November 20, 1894, he seems to be plainly in contempt. As to like debts collected by him áfter November 20, 1894, the case is not so plain, and he may be given the benefit of the doubt. Proceedings to punish for ■contempt, however, are personal, and there is nothing to show that Lafavour has been served personally with notice of this application. Plaintiff may therefore take an order to show cause directed to Herbert Lefavour, requiring him to appear personally before this court on Saturday, January 5, 1895, at 11 o’clock in the forenoon, and there and then show cause why he should not be committed for 10 days as a punishment for his contempt of this court.