United States v. Needy

146 F. 764

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: March 19, 1906
• Status: Published

Opinion

LACOMBE, Circuit Judge.

Kaulbach, who claims the money represented by the certificate of deposit, apparently acquired whatever interest he has subsequent to the levy. He should not, however, for that reason be denied opportunity to establish a claim, if he can do so, either personally or through Russey, under the principles governing-negotiable paper. He has quite properly, although not a party, moved in this action, because in that way a decision can.be reached much more quickly and economically than in any other. Judging from a communication received from his counsel, he does not understand the practice usual here when there is a conflict of affidavits upon a motion, and confounds it with the state reference of all the issues. As was stated on the argument, it would he grossly improper to vacate attachment on either Kaulbach’s or Russey’s ex parte affidavit untested by cross-examination. The case is therefore sent to the clerk of the court to take such testimony as may be offered, and report the same to the court promptly. Notice of the hearing should be given to the bank and to Russey, and they should be allowed to intervene. To save expense, the testimony of Russey or of any one else living more than 100 miles from the courthouse, may be taken by commission upon direct and cross interrogatories. Whether there shall be any delay, or not rests wholly with the moving party. If he is reasonably , expeditious, there is no reason why the testimony may not be completed and the matter disposed of within two weeks. The suggestion of calling witnesses, from the Attorney General’s office and producing books and documents from the banks is preposterous. No questions calling for any such proof are to be decided. A single witness from the bank will prove the genuineness of the certificate of deposit, and, if petitioner can show that he is a bona fide holder for value with a title superior to the levy, the attachment will be vacated. I f he cannot show this, no other alleged defect in the levy vdll be considered, because, if he is not such a bona fide holder, he is a mere stranger, who has no concern in the question whether the levy was properly made or not.

This summary proceeding is much less expensive than the litigation proposed in the state courts. There are no costs on motions in the federal courts. The affidavit of Kaulbach, on which he relies as entitling him to relief, does not make out a prima facie case, because its averments are rather of conclusions than of facts.