Ross v. Whipple

Dubfee, C. J. This petition, though preferred in this court, is ancillary to a petition in bankruptcy pending in the United States District Court. It would seem to be the more correct, in point of practice, to bring the principal and ancillary petitions both in the same court. The bankruptcy court knows better than we the requirements of its proceeding, and is, therefore, better qualified to judge to what extent the ancillary proceeding should be carried. We understand tbe petitioners came to this court because they supposed a resort to this court was required by the decision in Chapin v. James, ante, p. 86. In Chapin v. James, the attempt was made to get the state court to interfere with the execution of the process of the United States court, in a matter in which both courts have concurrent jurisdiction. That is not this case. A proceeding in bankruptcy is, so to speak, a privileged proceeding. It is paramount to the legal proceedings of the state courts, and, therefore, the court having jurisdiction of the bankruptcy proceeding may, when necessary, very properly protect it against the action of the state courts. We speak of this, however, merely as our opinion of the better practice. We do not mean to say that our jurisdiction is excluded; but if the petitioners wish to proceed in this court, we think the form of proceeding should be changed. They come *429 here by simple motion or petition in an action at law, in which they are not only not parties to the record, but in which also they have no interest or standing whatever ; and they ask us to stay an execution which has been already issued and partly served, and that, too, for the protection of a proceeding pending, not in this court but in another tribunal. We think that, under these circumstances, if they wish to proceed here, they should proceed by some independent suit which can be litigated in due form. And see Price v. The Shelby Circuit Court, Hard. 254 ; Hitchcock, on motion, v. Roney, 17 Ill. 231; Gassell's Adm'r v. Wilson's Adm'r, 4 Wash. C. C. 59; Myers v. Kelsey, 19 Johns. Rep. 197. James Tillinghast $ Charles Bradley, for petitioners. Thurston, Ripley Co., contra.