Walter v. Bickham/Opinion of the Court

by by John Marshall Harlan

United States Supreme Court

122 U.S. 320

Walter  v.  Bickham

On behalf of the plaintiff it is insisted (1) that the law does not authorize any one to serve writs directed to a marshal, except that officer himself, or such of his appointees as may have duly qualified as deputies, by taking the oath or affirmation prescribed by section 782 of the Revised Statutes of the United States, and that service by any one else is void; (2) assuming that an appointee of the marshal, who was not thus qualified, can serve process directed to the marshal, the latter has no right to delegate to another his power of appointment, and he cannot ratify such an appointment, nor validate a levy made in his name by one not lawfully appointed; (3) assuming that the marshal has the right to delegate his power of appointment, the authority conferred by him on the attorney of Bickham & Moore was exhausted after Hall's appointment and agreement to serve. On the other hand, it may be claimed that, if the appointment of Ladd to execute the attachment was illegal, and if his levy was void, the subsequent action of a regular deputy of the marshal in taking possession of the attached property, and holding it under the writ delivered to him by Ladd, made the levy from that time so far valid that the property was thereafter to be deemed in the lawful custody of such deputy, under the writ of attachment.

It is unnecessary to determine any of these questions; for the record shows that on the nineteenth of October, 1873, before the plaintiffs in error obtained their judgment against Lake & Austin, and therefore before they had acquired any special interest in the property, the court below, upon the application and with the consent of all the creditors who had theretofore sued out attachments, and with the consent, as well of the debtors themselves as of Hebron, the assignee in the deed of assignment executed by the debtors, the attached effects were sold, by order of the court, and the proceeds paid, pursuant to that order, to the clerk. Thus every person who was in a position in reference to the property, to object to the manner in which the writ of attachment was executed, consented that the property be placed under the control of the court, the proceeds of the sale to be applied to the attachment liens in their order.

Under these circumstances, creditors who did not obtain judgments until after such consent order was made, cannot be heard to object to the manner in which the property was originally seized and brought into court, and made subject to its orders. The attaching creditors, the debtors, and the assignee of the debtors, having all approved what was done, subsequent judgment creditor, the consent order of sale not being impeached on the ground of fraud, acquired no such rights in the property as entitled them to question the disposition made of it, or of the proceeds of sale.

The judgment is affirmed.

Notes