as the trustee contends, because Ashbridge failed to prosecute the attachment execution to judgment within fifteen years. In re Franklin Garden Apartments, Inc., D.C.E.D.N.Y., 42 F.Supp. 117; In re Fergus Falls Woolen Mills Co., D.C. Minn., 41 F.Supp. 355.
Having determined that this court has jurisdiction, I proceed now to the question whether Ashbridge should be enjoined from proceeding further in the state court on the attachment execution. Under Section 2, sub. a(15), of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a(15), the bankruptcy court is empowered to protect, in a summary manner by injunction, the custody of property which it has acquired. Ex Parte Baldwin, 291 U.S. 610, 54 S. Ct. 551, 78 L. Ed. 1020. The scope of this power is not unlimited and the prosecution of a proceeding in another court should be enjoined only where that proceeding 'interferes with the possession or custody of the bankruptcy court or unduly impedes or embarrasses the court in its administration under the Act.'
In Straton v. New, supra, the Court said, 283 U.S.at page 326, 51 S. Ct.at page 468, 75 L. Ed. 1060: ' * * * the federal courts have with practical unanimity held that where a judgment which constitutes a lien on the debtor's real estate is recovered more than four months prior to the filing of the petition, the bankruptcy court is without jurisdiction (sic) to enjoin the prosecution of the creditor's action, instituted prior to the filing of a petition in bankruptcy, to bring about a judicial sale of the real estate.' Similarly, where attachments are made which create liens more than four months before the filing of the petition, the subsequent prosecution of the proceeding to judgment and satisfaction will not be enjoined. Gatell v. Millian, 1 Cir., 2 F.2d 365; In re Thompson, 3 Cir., 294 F. 247, 32 A.L.R. 556, certiorari denied 264 U.S. 582, 44 S. Ct. 331, 68 L. Ed. 860.
These principles, however, have no application to the facts of this case and are not controlling herein. In denying the bankruptcy court the power to enjoin proceedings begun prior to bankruptcy having as their objective the satisfaction of a valid existing lien, the cases have assumed, as a prerequisite, that a valid lien exists. Here, the validity of Ashbridge's lien is the very question ut in issue by the trustee's petition. I have already determined that this court has jurisdiction to decide that issue summarily. Further prosecution of the attachment execution proceedings in the state court will raise the same question for determination by that court. The issuance of the injunction requested is necessary to protect property in the constructive possession of the bankruptcy court and to protect the jurisdiction of the bankruptcy court to determine the validity of Ashbridge's lien. Therefore, an injunction in accordance with the conclusions set forth above will be granted.
Validity of the Lien
In addition to the request for an injunction to restrain further prosecution of the attachment execution proceedings, the trustee seeks a declaration by this court that the writs of attachment execution are null and void and that the lien acquired thereby is invalid. The trustee contends that the lien obtained by service of the writs on the garnishee has been abandoned because of the creditor's failure to prosecute the attachment proceeding to judgment for approximately fifteen years prior to the petition in bankruptcy.
The Pennsylvania Act of June 16, 1836,
which authorizes attachment of property belonging to the judgment debtor in the possession of a garnishee in satisfaction of the judgment, includes no provision limiting the time within which the judgment creditor shall proceed to judgment. Neely v. Grantham, 58 Pa. 433; Cookson and Waddington v. Turner, 2 Binn. 453; Gemmil v. Butler, 4 Pa. 232. There is little authority to support the proposition advanced by the trustee, although I find dicta in lower court cases to the effect that abandonment of an attachment execution may be implied from delay in prosecution except where satisfactorily explained by plaintiff. Se In re Estate of Wilkinson, 30 P.L.J. 401; Watson & Co. v. Christ, 15 Sch.L.R. 292; Lemon v. McCurdy, 47 P.L.J. 343.
In Pennsylvania Co. v. Youngman, 314 Pa. 277, 171 A. 594, plaintiff did not prosecute the attachment proceedings to trial for twenty-two years after service of the writ. The property attached was the judgment debtor's contingent interest under a will which did not vest until twenty years after service of the writ. Although the court recognized that the garnishee might have moved to dissolve the writ because of laches, it held that there was satisfactory explanation of the delay and, since plaintiff had offered prima facie proof rebutting the presumption of payment, that a directed verdict for defendant was error.
In Biddle v. Girard National Bank, 109 Pa. 349, the court held that, in the absence of evidence to the contrary, an attachment sur judgment was presumed to be abandoned where no steps had been taken for over twenty years after the garnishee's plea of nulla bona. However, the court based its holding on the fact that the judgment supporting the attachment proceedings was presumed to have been paid after a lapse of twenty years. Cf. Gilmore v. Alexander, 268 Pa. 415, 112 A. 9.
I have been unable to find any decision by a Pennsylvania court deciding whether a lien, obtained by service or levy under a writ of attachment execution, may be lost by unreasonable delay in prosecuting the garnishment action to judgment. There is, however, sufficient dicta in the opinions of the lower courts and appellate courts to indicate that such a lien will be deemed abandoned and lost where the judgment creditor has been guilty of unreasonable and unexplained delay in prosecuting the action to judgment causing prejudice to interested parties. I so hold.
The trustee asks that this court adjudicate the invalidity of the lien on the basis of the facts alleged in the trustee's petition and admitted by the respondent. There were no facts presented to this court from which it can be determined whether there is any satisfactory explanation for respondent's delay in prosecuting the attachment proceedings. Respondent is entitled to a hearing on that question before the validity of the lien can be adjudicated. I therefore direct that the parties appear before the Referee in Bankruptcy to whom this matter has been referred for a hearing on the question of the validity of respondent's lien and a determination thereof by the referee in accordance with this opinion.
An appropriate order may be submitted.