In re Anostos

GIBSON, District Judge. On November 24, 1921, the bankrupt delivered to James Mileadis, the petitioner, a judgment note for $475, in which was a waiver of exemption. On March 27, 1922, this note was entered in the court of common pleas of Greene county, Pa., and an execution at once issued, pursuant to which the sheriff levied upon and advertised the merchandise and fixture's in the store of the bankrupt in said county. On March 31, 1922, an involuntary petition was filed in this court, and on the same day an order was secured restraining James Mileadis and all other persons from proceeding further with said execution. On April 3, 1922, a temporary receiver was appointed and took charge of said merchandise and fixtures, and on April 13, 1922, he sold the same for the sum of $600 in cash. On April 14, 1922, a waiver of exemption by the bankrupt was filed. The adjudication was made on April 20, 1922, and the schedules were filed on June 3, 1922, in which the bankrupt made no claim for exemption. On April 19, 1922, James Mileadis filed his petition in this court, wherein he set forth the foregoing facts and prayed the court to make an order empowering and directing the receiver to forthwith pay over to him $300 of the moneys in his hands; exemption having been waived for his benefit, in said note, as aforesaid. This petition was referred to P. D. Reinhart, Esq., referee in bankruptcy for said county, for determination, and on September 1, 1922, said referee made an order whereby the petition of James Mileadis was refused. Thereupon, ,on September 6, 1922, the petitioner filed his petition for review in this court. An examination of the authorities will disclose the fact that they are not uniform upon the question involved. In Matter of Goldberg (D. C, Pa.) 254 Fed. 440, 42 Am. Bankr. R. 299, it has been held in substance that, where a judgment creditor has issued execution out of the"state court and has levied on personal property of the defendant, who, pending sale under such execution, has had a petition in bankruptcy filed against him, and who subsequently has failed or refused to file any claim for exempt property, the levying judgment creditor has not been [103] deprived of- the lien of his execution, and that he is entitled, where the trustee has made sale of the property upon which levy has been made, to receive the sum of $300, the amount of debtor’s exemption, from the proceeds of the sale. But while we have great respect for the opinion of the learned judge who rendered such decision, we feel that the weight of authority is against his finding and is adverse to the position of the petitioner herein. See In re Baughman (D. C. Pa.) 183 Fed. 668, 25 Am. Bankr. R. 167; Matter of Gunzberger (D. C. Pa.) 45 Am. Bankr. R. 690, 268 Fed. 693; In re Black (D. C. Pa.) 104 Fed. 28, 4 Am. Bankr. R. 776; In re Cross (D. C. Pa.) 281 Fed. 217, 48 Am. Bankr. R. 634. The authorities are more fully and at length set forth and considered in the opinion filed by the learned referee, with whose opinion the court is in agreement. The exceptions of the petitioner to the order of the referee, disallowing the claim of James Mileadis for allowance of the sum of $300 out of the funds in the hands of the trustee, must be dismissed, and an order will be drawn, affirming the order of the learned referee.