Hunydee v. Strand

BBOWN (Gerald), J. Plaintiff has appealed from a summary judgment favoring defendants and from a judgment denying plaintiff’s motion for summary judgment.

The facts are undisputed. On September 15, 1960, a petition was filed in the bankruptcy court by creditors of Lakeside Lumber Co., Inc. to have Lakeside declared a bankrupt. Written notice of the bankruptcy proceedings was received by the sheriff on September 19, 1960.

On September 21, 1960, appellant obtained a default money judgment against Lakeside and forthwith delivered a writ of execution to the sheriff with instructions to levy execution on the property of Lakeside.

The sheriff informed appellant’s attorney on September 22, 1960, that he believed the filing of the petition in bankruptcy prevented him from paying any monies to the appellant’s attorney. Appellant’s attorney responded on September 23, 1960, with a demand for all monies held or to be obtained in the future by the sheriff under the writ of execution.

On October 9, 1960, the sheriff received an order from the bankruptcy court restraining all creditors from filing or proceeding with any court action or attachments against Lakeside. Appellant’s attorney wrote the sheriff October 10, 1960, demanding all funds obtained under the writ of execution, pointing out that the restraining order was directed to Lakeside’s creditors and not to the sheriff. On October 14, 1960, [687]the sheriff received an order from the bankruptcy court to deliver to the receiver in the bankruptcy court action all monies which the sheriff had obtained in levies upon the property of Lakeside; the sheriff advised appellant's attorney by letter of October 18, 1960, that he intended to comply with this order unless appellant’s attorney supplied good cause for not doing so; appellant’s attorney responded stating that before the order of the bankruptcy court requiring the sheriff to pay all funds to the receiver, the sheriff should have delivered possession of the funds to the appellant or his attorney, pursuant to the three demands which appellant’s attorney had made upon the sheriff. Appellant’s attorney, however, conceded that in view of the bankruptcy court’s order the sheriff had no alternative but to deliver the funds to the receiver. Lakeside was adjudicated a bankrupt on October 20,1960.

The defendant sheriff had accumulated, between the dates of September 21, 1960, and October 14, 1960, a total of $7,115.34 under the writ of execution. This sum was delivered by the sheriff to the receiver in bankruptcy for Lakeside and on November 14, 1960, the sheriff returned the writ of execution to the appellant wholly unsatisfied.