Northern Shoe Co. v. Cecka

Fisk, J. (after stating the facts as above). A sufficient answer to appellant’s first contention is the fact that it is clear, from the record, that the question of the sufficiency of the affidavit for attachment was not raised or passed upon in the court below. Mahon v. Fansett, 17 N. D. 104, 115 N. W. 79. Appellant’s other and chief contention, as we understand it, is in effect that respondent, by its conduct in abandoning its first attachment and consenting that the property be turned over to the trustee in bankruptcy, and by filing its claim in the bankruptcy court as an unsecured creditor; and also by failing to object to the report of the trustee turning the shoes over to the debtor as exempt, — thereby waived its right to thereafter pursue such exempt property by attachment in the state court, and that it is estopped on account of such facts from so doing. Appellant’s counsel seem to labor under the belief that, because of these facts, the debtor gains some right in this exempt property which, but for the bankruptcy proceedings, he would not have possessed : viz., the right to own and enjoy the same freed from any claim of the respondent to attach it for the purchase price. In other words, having been set apart to him as exempt by the bankruptcy court, such property is wholly and forever after exempt as against the claims of all creditors whose claims were provable in bankruptcy, even though as to certain of such creditors no exemptions are allowed under the state statute. Counsel attempt to differentiate this case from Powers Dry Goods Co. v. Nelson, 10 N. D. 580, 58 L.R.A. 770, 88 N. W. 703, on [635] die ground, that in such case the attaching creditor filed no claim and .made no appearance in the bankruptcy court, and that the exempt property which was there attached was never in the possession of the trustee. We are unable to discover how such facts are in any manner controlling. We fail to see how the fact that respondent participated in the proceedings in the bankruptcy court should operate to deprive it of the remedy which it now asserts. The remedies, even if two remedies existed, were not at all inconsistent, as appellant contends. In fact, at the time it filed its claim as a general creditor this remedy did not exist at all, and, of course, it had no means of knowing that the debtor Would later on •select, and cause to be set apart to him by the bankruptcy court, these shoes as exempt. In other words, it had no choice of remedies at that time. How, then, respondent’s acts, as above stated, can operate to create an estoppel in appellant’s favor, we are wholly at a loss to comprehend. •Surely, appellant was bound to know that, the statute, on exemptions were allowed him as against an attachment for the purchase price, and consequently if he selected property as exempt which he had mot paid for, that his creditors might pursue it. The bankruptcy court •cannot make property exempt which under the statute is not exempt, .nor does it attempt to do so. This is not a case like some of those cited by counsel, where respondent has, by contract or otherwise, expressly waived his remedy of attachment, or by an election of remedies has lost ■such right. Appellant cannot assert a waiver or estoppel based on the fact that the first attachment was abandoned, for under the Federal law the adjudication of bankruptcy operated to annul such attachment levy, and •respondent did nothing except what the law itself, in effect demanded •that he should do. See § 61 f. bankruptcy act. Counsel for appellant .are clearly in error in their assumption that respondent, under the first .■attachment, had a lien which might, ¿xcept for plaintiff’s voluntary acts, have survived the adjudication of bankruptcy. The plaintiff had no lien ■except by virtue of the levy of its attachment. The Code nowhere gives a special lien to a vendor of chattels who has delivered same to his ven•dee, except as he may acquire such lien by the levy of an attachment or execution in an action to recover the purchase price. Certain language employed in the opinion in Weil v. Quam, 21 N. D. 344, 131 N. W. 244, might possibly be construed to the contrary, but we there merely [636] intended to hold that the statute confers a special right to attach or levy upon specific personal property in an action for its purchase price. We are agreed that the prior decisions of this court, as well as the decisions of other courts hereafter cited, fully sustain the order made by the learned trial court. See Re Kaeppler, 7 N. D. 435, 75 N. W. 789; Powers Dry Goods Co. v. Nelson, 10 N. D. 580, 58 L.R.A. 770, 88 N. W. 703; Jewett Bros. v. Huffman, 14 N. D. 110, 103 N. W. 408; Re Durham, 104 Fed. 231; Re Little, 110 Fed. 621; Re Hill, 96 Fed. 185; Re Wells, 105 Fed. 762; Re Jackson, 116 Fed. 46; Re Edwards, 156 Fed. 794. Order affirmed.