H. W. Gillett & Co. v. McCarthy , 23 Kan. 668 ( 1880 )

The opinion of the court was delivered by

Horton, C. J.:

The question presented in this case has already been treated by so many courts, with such fullness of learning and ability, and so often adjudicated, that a reference to the conclusions obtained and the more important of the decisions is all we deem necessary. An attachment made prior to the period of four months next preceding the commencement of proceedings in bankruptcy is not dissolved under the bankruptcy act; not being dissolved, it remains in full force.' Where the attachment is made prior to that time, the debtor’s title to the property attached passes to the assignee subject to the creditor’s lien acquired by virtue of the attachment. This lien may be enforced in the state court against property attached, but not against the person of the defendant or any other property. The discharge is in personam, and does not affect liens, except those based on attachments or mesne process levied .within four months before the filing of. the petition, and those which can be avoided by showing that they were procured or preferred with a view of giving the preference prohibited by §§5021 and 5128 of the bankrupt act. As the proceedings in bankruptcy did not oust the state court issuing the order of attachment of jurisdiction to enforce the attachment lien in this ease, and as the discharge in bankruptcy did not annul or affect such lien, the ruling of the trial court was erroneous. Sections 5044, 5055, U. S. Rev. Stat. 1875; Bump on Bank. (6th ed.), 368; Daggett v. Cook, 37 Conn. 341; Leighton v. Kelsey, 57 Me. 85; Bates v. Tappan, 99 Mass. 376; Robinson v. Wilson, 15 Kas. 595.

The decisions of Taylor v. Bonner, 38 Tex. 521, and Johnson v. Pogue, 39 id. 92, to which we are referred by counsel for defendants in error as conclusive, are overruled in Elliott v. Booth, 44 id. 180,191.

The order and judgment of the district court will be reversed, and the case remanded.

All the Justices concurring.