
    THE PEOPLE ex rel. MARIANNA JENNYS, Respondents, v. MATTHEW T. BRENNAN, Sheriff, etc., Appellant.
    
      Bankruptcy—Conflicting claims to property — how determined—Jurisdiction — when consent of party will confer.
    
    The proper mode of determining conflicting claims to money in the hands of the sheriff, collected by him upon an execution issued against the bankrupt, is by a bill in equity, filed either by the assignee or the sheriff.
    
      Smith v. Mason (14 Wall., 419) and Marshall v. Knox (16 id., 551) followed.
    Where a petition is presented to the United States District Court, by the assignee in bankruptcy, praying for a disposition of the conflicting claims made to money in the hands of the sheriff (upon the hearing of which, the assignee, the sheriff and the party claiming the money, all appear by counsel), and an order is made by consent, referring it to one of the registers, to take proof and report the same to the court with his opinion; and, upon the coming in of his report, all the parties having appeared before him, an order is made directing the sheriff to pay the money to the assignee: held, that the party claiming the money, by consenting to the order of reference, waived his right to insist that the court had no jurisdiction, for the reason that the proceeding should have been by bill and not by petition; and that the fact that such objection was taken by him, at the hearing before the register, did not deprive the court of the jurisdiction thus acquired.
    The relator, on or about the 11th day of July, 1871, recovered a judgment in this court against her husband, John L. R. Jennys. On the twenty-eighth of the same month, an execution against property was issued upon the judgment to the appellant, as sheriff of the county of New York, upon which he collected the sum of $1,277.90, besides his fees and expenses. Before the moneys so collected were paid over, proceedings were taken in the United States District Court for the southern district of New York, under the bankrupt law, for the purpose of having the judgment debtor and his partner adjudged bankrupts, and for a distribution of their property among their creditors. While those proceedings were pending, and on the 10th of May, 1872, an order was made on the application of the relator, after hearing the appellant, ordering him to pay over to her the moneys collected by him on the execution. From that order he appealed to the G-eneral Term, where it was affirmed on the 4th day of June, 1872. A further application was made to punish the appellant for contempt, for not paying over the money, as required and directed by the order of the 10th of May, 1872, and that resulted, on the 5th of October, 1874, in an' order imposing a fine upon him, amounting to the sum of $1,483.05, and $260 costs and expenses of the proceedings, and directing his commitment to prison until he should pay the same.
    Upon the hearing- on which the last order was made, it was shown that, on the same day the order of the 10th of May, 1872, was served on the appellant, and near the same time, an injunction was also served upon him, issued out of the United States District Court, enjoining and prohibiting the payment of such moneys to the relator. It was further made to appear, that a petition was presented to that court, by the assignee who had been appointed in the bankruptcy proceedings, for a disposition of the conflicting claims made to the moneys in the hands of the appellant under the execution. On the hearing of that petition, the relator, the appellant and the assignee appeared by their respective counsel, and an order by consent was made, on the 10th of February, 1872, referring the claim made by the assignee to the money, to one of the registers of the court, to take proof and report it with his opinion to the court. At the outset of the hearing before the register, the relator’s counsel objected that the proceeding by petition was improper, and that her right to the money could only be properly contested by a bill in equity. After that, both the claiming parties proceeded with the hearing, and gave evidence before the register. He afterward returned the evidence to the court, with his opinion in favor of the assignee, and the United States District Court, after hearing the counsel for the relator and the assignee, and on notice to the appellant, on the 1st day of March, 1873, ordered him to pay the money over to the assignee, which he did, on the tenth day of that month. On the 20th day of June, 1873, an attachment was ordered to issue against the appellant to bring him before the court for punishment for disobeying the order of the 10th of May, 1872; and, in the proceeding following his arrest on the attachment, the order was made imposing a fine upon him for such disobedience. From the last order the sheriff appealed to this court.
    
      J, Sterling Smith and A. J. Yanderpoel, for the appellant.
    The United States District-Court had jurisdiction of the subject-matter of this controversy, and its order cannot be questioned on this motion. (Bankrupt Act, § 1; Fisher v. Hepburn, 48 N. Y., 41; The Chemung Canal Bank v. Judson, 8 id., 254, 262, 263.) The order of reference to the register having been entered on the consent of the relator, it was a voluntary submission to the jurisdiction of the court; it was too late for her counsel to object afterward, that the referee had no right to proceed under the order so entered. (Felly v. Smith, 1 Blatch., 296.) This proceeding in the District Court was binding upon all the parties thereto, and the order therein cannot be attacked collaterally, provided the District Court had jurisdiction of the matter. (Gelston v. Hoyt, 1 Johns. Ch., 542; Young v. Rummell, 2 Hill, 478; Ehle v. Bingham, 7 Barb., 494; Demarest v. Darg, 32 N. Y., 281; Fisher v. Hepburn, 48 id., 41.)
    
      O. P. Buel, for the respondent.
    The order of May tenth, affirmed by the General Term, in this district, determines the rule in this proceeding as to every question of law and fact expressly or by necessary implication passed upon in that adjudication. The sheriff can neither justify ñor excuse his disobedience by impeaching or attacking, directly or indirectly, the order he has disobeyed. (People v. Sturtevant, 9 N. Y., 263, Johnson, J., 266; Pitt v. Damison, 37 id., 243; People v. Johnson, 38 id., 63; Woodgate v. Fleet, 44 id., Earl, C., 13, 14; Davis v. The Mayor, 1 Duer, 451; Erie Railway Co. v. Ramsey, 45 N. Y., 637.) The district judge should have dismissed the proceeding. Neither the appearance of the party proceeded against, nor such party’s contesting the title to the fund, waives objection to the jurisdiction. Express consent even, could not confer jurisdiction in such a case. (Marshall v. Knox, 16 Wall., 551; Smith v. Mason, 14 id., 419; Bump’s Bankruptcy [7th ed.], 201; Knowlton v. Prov. & N. Y. S. S. Co., 53 N. Y., 77; People v. White, 24 Wend., 520; Buffalo, etc., R. R. Co. v. Supervisors, 48 N. Y., 99; Bloom v. Burdick, 1 Hill, 130; Norton v. Cook, 9 Conn., 314; Kerr v. Kerr, 41 N. Y., 275; Blin v. Campbell, 14 J. R., 432; Bigelow v. Stearns, 19 id. [Spencer, C. J.], 41; Galpirn, v. Page, 18 Wend., 350; Burckle v. Eckhart, 3 Coms., 137; Clapp v. Graves, 26 N. Y., 418; opinion by Marvin, J., as to distinction between irregularities and nullities; Attorney-General v, Hotham, 1 Turn. & Russ., 219; 2 Phil. Ev. [4th ed.], 20; Cowen & Hill’s note, 262; id., 146; note, 293 [3]. As to jurisdiction with respect to process: id., 195; note, 306 [2]; Gracie v. Sheldon, 3 Barb., 232.) The objection to the form of the proceeding may be taken even at the hearing, or in the supervisory court. (Bump’s Bankruptcy [7th ed.], 201; In re Ballou, 3 B. R., 717; S. C., 4 Ben’t., 135; In re Bonesteel, 7 Blatch., 175.)
   Daniels, J.:

The respondents’ counsel insists that this court is concluded by the order made on the 10th of May, 1872, directing the appellant, the sheriff, to pay her the money he had previously collected on the execution in her favor, from questioning the propriety of that direction. But that is clearly a misapprehension of the condition of the case, for the order which directed the attachment to be issued, so far modified the preceding order, as to allow the parties to read, upon the hearing which should be afterward had, the papers used by the respective parties on the hearing of an order to show cause; and from the circumstance that the proceedings fin the United States District Court were produced and proved on the part of the sheriff, it may be inferred that they were within the scope of the modification so made. This conclusion is further warranted by the fact, that no objection that they were not within it, seems to have been taken by the relator to that course of proceeding. And the opinion of the learned justice, by whose direction the order for the attachment was entered, very decidedly confirms that view of the liberty secured by means of it. From that, it appears -that the intention existed to allow the sheriff to show that the relator had consented to the reference, made of the controversy concerning the title to the money collected under the execution, by .the "United States District Court, by way of answer to the proceeding instituted to punish him for disobeying the order directing him to pay the money to her; and, on the final hearing of that proceeding, that tact, as well as the hearing and final order following it, were shown for the purpose of protecting him from the order afterward made, imposing a fine upon him for his disobedience of the order directing the payment to the relator. These facts were entirely proper to be shown on the part of the sheriff, for another reason; for, although the reference in the United States District Court, was ordered before the order was made, directing him to pay the money to the relator, the hearing itself was chiefly, if not entirely, afterward, and the final order, under which the money was paid to the assignee, was not made until the 1st day of March, 1873. The effect of the hearing, and of the order made upon its determination, could not be considered, and was not involved in the order of the 10th of May, 1872, directing payment to the relator; and, unless the sheriff could prove them for his protection in the proceeding instituted by the attachment, he would have been completely deprived of all benefit from them. They were entirely proper for the consideration of the court, in the proceeding taken to punish the sheriff for disobeying the order of the 10th of May, 1872, because the final hearing on the referee’s report before the United States District Court, its confirmation, the order for payment of the money, and payment itself, all occurred after that time.

As the proceedings in the District Court of the United States were not concluded until long after the order which was disobeyed was made, it could not be then known whether they would result in a direction adverse to the relator’s claim.or not; and it was not possible for the court to consider or adjudge the effect of such a direction.

The first opportunity for presenting and considering the effect of the determination which was made, was in the proceedings taken by the attachment, and in them it was fully shown, together with what preceded and followed it in the United States District Court. But, notwithstanding the adjudication of that court that the money in controversy should be paid by the sheriff to the assignee in bankruptcy, and the actual payment following it, the Special Term of this court held, in the proceedings instituted by the attachment, that the payment was unlawful, and that the sheriff must pay the money again to the relator. The effect of the decision is, that the proceedings in the United States District Court, and payment under and pursuant to them, constituted no proper answer to the relator’s demand for the same money. Whether that conclusion was correct or not, is the point now remaining to be considered in the disposition of the present appeal. Under the bankrupt law, there can be no doubt that the proper mode of determining the conflicting claims made for the money collected upon the execution, was by a bill in equity, either by the assignee or the sheriff. That point has been definitely settled by the decisions made in Smith v. Mason and Marshall v. Know. But in both those cases, the proceedings by petition were not only opposed by the parties proceeded against, but they were reviewed in the manner which the bankrupt law provided for that purpose. The present case is distinguishable from them in both respects, for the relator first consented to the reference of the claims under the petition of the assignee, and, after a determination against her, denies its effect only in a collateral proceeding.

The proofs produced upon the hearing under the attachment, show that her counsel consented to the reference in order to avoid the necessity of the more formal action by bill of complaint, and that consent was in no manner attempted to be withdrawn, until it had been acted upon and the reference ordered. After that, and after the objection was made before the register that the proceeding should have been by bill, the relator proceeded with the hearing, and gave, as well as contested, evidence which was pertinent to the settlement of the controversy embodied in the order. The objection was renewed in the brief presented to the United States Court on the final hearing, but, in the disposition then made of the case, it must have been overruled.

That the United States District Court had jurisdiction over the controversy existing between the relator and the assignee, is settled by the authorities already cited; and if her consent was sufficient to subject her to that jurisdiction by the proceedings commenced by the' petition, then the objection afterward made did not have the effect of depriving the court of the authority which she had-voluntarily given it over her person. It had the power of subjecting her to its jurisdiction for the settlement of the dispute existing between her and its officer; but not by means of the summary proceeding taken by him, unless she elected to consent to it. But, as she did consent, and the reference to take the proof was made upon that basis, by that act she surrendered herself to the jurisdiction of that court for the purposes comprehended in the petition. She was irregularly brought before it, but waived the irregularity by the assent to the proceedings, which her counsel gave in her behalf. That gave it jurisdiction over her person ; and, as the subject-matter was within its lawful authority, that was sufficient to enable the District Court to proceed with the hearing and decision of the dispute concerning the money in the sheriff’s hands. After jurisdiction was obtained in this manner over the relator, the court had the right to retain it until all the purposes of the proceedings were fully attained, and, even though it might have been irregular, it was still binding and effectual as long as it was neither reversed nor set aside. This was held of a similar proceeding, in the case of People v. Norton, where a trustee had been removed by petition, instead of by bill of complaint. By way of answering the objection, it was replied in the opinion delivered, and concurred in by all the members of the court, that “ the Court of Chancery had general jurisdiction of all cases of trust, and the power by its general authority, independent of any statute, to displace a trustee on good cause shown, and to substitute another in his stead. It is said that this must, in all cases, according to the course and practice of that court, be done by bill and not upon petition. But a departure from the usual practice of the court, in doing an act which the court has authority to do, does not render the act void. It may be irregular or erroneous, and, upon a direct proceeding, may be set aside or reversed; but its validity cannot be questioned in a collateral action.” ' This principle is directly applicable to this case, and the decision is a "decisive authority against the position taken in the relator’s behalf; and it is further fortified and maintained by the circumstance that consent has generally been held sufficient to confer jurisdiction over the person giving it. To the same effect, also, is the case of Fisher v. Hepburn. And it was assumed to be the case in both the authorities cited from the United States Supreme Court Reports. For that court held, that “ strangers to the proceedings in bankruptcy, not served with process, and who have not voluntarily appeared and become parties to such litigations, cannot be compelled to come into court under a petition for a rule to show cause.” A voluntary appearance was evidently considered to be sufficient for all the purposes of jurisdiction, even over strangers to the proceeding. The same thing was decided in Ex parte Squires v. Broome C. P., where the defendant was served with a declaration out of the county, which gave the court no jurisdiction over his person; and it was held- that he waived the objection, by procuring an order in the cause that the plaintiff should file security for costs.

Objection to the jurisdiction over the person of a party may be expressly waived, and the same thing may be done by implication, by means of any act indicating it to be the design of the person entitled to make it, not to insist upon it. And in Clapp v. Graves, the principle was applied to the support of a judgment recovered before a justice, where the defendant, a non-resident, was proceeded against by a long instead of a short summons. As he appeared in the action, and took no objection to the process, the jurisdiction over him was held to be complete, and that, too, where the statute provided that it could only be acquired by the service of a short summons. Other cases of a similar nature will be found in 2 Wait’s Law and Practice (1st ed.), 17, 19. Neither the case of the Buffalo & State Line R. R. Co. v. Supervisors, nor that of Bloom v. Bwrdick, is opposed to this principle. In the latter, the real property of infants had been sold upon proceedings in a Surrogate’s Court, without the appointment of a guardian for them. Being infants, they could not waive the defect, and, for that reason, the court had no jurisdiction over them. According to the authorities applicable to the present controversy, the relator was concluded by the proceedings instituted with her consent in the United States District Court, for the determination of the dispute concerning the title to the money in the sheriff’s hands. The determination there made, fully justified him in paying it over to the assignee, and that was sufficient, under the circumstances properly appearing on the hearing, and specially allowed by the order directing th'e attachment, to exonerate him from the ordinary consequences which vyould otherwise have resulted from his disobedience of the order of the 10th of May, 1872. By the proceedings taken upon the relator’s consent, she precluded herself from the right to complain of such disobedience. The order appealed from should be reversed, with ten dollars costs, besides disbursements, and the motion made denied, with ten dollars costs.

Davis, P. J., and Bbadt, J., concurred.

Ordered accordingly. 
      
       14 Wallace, 419.
     
      
       16 Wallace, 551.
     
      
      Pitt v. Davison, 37 N. Y., 335, 343.
     
      
      
         5 Seld. 176, 178.
     
      
      48 N. Y., 41, 53.
     
      
       Marshall v. Knox, 16 Wall., 557.
     
      
       lO Wend., 600.
     
      
       Allen v. Malcolm, 13 Abb. (N. S.), 385; Hobart v. Frost, 5 Duer, 673; Baker v. Braman, 6 Hill, 47; Conkling v. King, 6 Seld., 440, 446; Buel v. Trustees of Lockport, 3 Com., 197, 300.
     
      
       26 N Y., 418.
     
      
       48 N. Y, 93.
     
      
       1 Hill, 130.
     
      
       Dwight v. St. John, 25 .N. Y., 203; Embury v. Connor, 3 Com., 511, 522.
     