Cox v. State Bank of Chicago

KOHLSAAT, District Judge. Plaintiff brings this suit to recover from defendant the proceeds of certain goods and chattels, choses in action, and open accounts, alleged to be the property of the bankrupt. Defendant claims the same by virtue of sale had and garnishee proceedings, by virtue of certain attachment proceedings and a judgment recovered thereon, which were instituted subsequent to the filing of the petition in involuntary bankruptcy in the Western District of New York. It further appears that afterwards said bankrupt was duly adjudged to be a bankrupt, which proceeding is still in full force and effect. The declaration consists of the common counts and one special count. To the common counts defendant pleads. To the special count he demurs. The cause now comes on to be heard upon the demurrer. The special count sets out the filing of the petition in bankruptcy, the adjudication, the commencement of defendant’s suit subsequent' to the filing of the petition, the judgment, sale, and receipt of the proceeds by defendant, and charges that defendant thereby became indebted to and promised to pay said money on request, but that, being often requested, it has failed and refused so to do. Defendant' insists that plaintiff does not, by the allegations of this count, bring' himself within the terms of the bankruptcy act, Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]. I am of the opinion that the proceeding, so far as it laid hold of the assets of the bankrupt, even before adjudication, was void, and that plaintiff is entitled to recover on the facts as pleaded in the special plea. Kinmouth v. Braeutigam, 63 N. J. Eq. 103, 52 Atl. 226. The demurrer is overruled.