Brief of Respondent, Edward Oravitz, Adsministration of the Estate of John Oravitz, Deceased, Opposing Certiorari — United States v. Acri

UNITED STATES OF AMERICA,

Petitioner,

Vv

MICHAEL P. ACRI, DOLLAR SAVINGS & TRUST CO., THE

DOLLAR SAVINGS & TRUST CO. OF YOUNGSTOWN, OHIO,

GUARDIAN OF THE ESTATE OF MICHAEL P. ACRI, and

EDWARD ORAVITZ, ADMINISTRATOR OF THE ESTATE OF

JOHN ORAVEC, a.k.a, ORAVITZ, DECEASED.

On Pertrrion ror Wait or CERTIORAR!

To tHe Unrrep States Court or APPEALS

For THE SrxtuH Circuit.

BRIEF OF RESPONDENT, EDWARD ORAVITZ,

ADMINISTRATOR OF THE ESTATE OF JOHN

ORAVITZ, DECEASED, OPPOSING CERTIORARI.

—————

—

Joun A. WILLO,

509-10 Union National Bank Bidg.,

Youngstown, Ohio,

Francis B. KAvANAGH,

120 Sunset Road,

Avon Lake, Ohio,

IsRAEL FREEMAN,

Office of the Attorney General,

State House Annex,

Columbus 15, Ohio,

Counsel for Respondent.

oer

i ieee

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OCHIO—MAIN 1-8647

TABLE OF CONTENTS.

Statement of Facts

Argument

Whether the lien of an attaching creditor under the

provisions of the Ohio Statutes has priority

over Federal tax liens assessed, levied and re-

corded subsequently to the date of the attach-

ment lien 3

Nature of Attachment Lien Under Ohio

Statutes

Inapplicability of California Law

Priority of Attachment Lien

Priority of “Debt Due United States”

Operative Effect of Attachment Lien

Ccaonu Ww

Conclusion 12

TABLE OF AUTHORITIES.

Federal Courts.

Carswell Construction Co., Re, 13 Fed. (2) 667 7

Mackenzie v. United States (C. C. A. 9th, 1940), 109

F. (2d) 540 7

New Britain case, Adv. Rep. U. S. L. Ed. Vol. 98,

p. 289 9. 13, 14

New Orleans v. Harrell, 134 Fed. (2) 399 7

Rowe Bros., Re, 18 Fed. (2) 658 8

Spokane County v. United States, 279 U. S. 80. 73

L. Ed. 621

U.S. v. Acres (Mo. 1947). 73 Fed. Sup. 820

U.S. v. Canal Bank (C. C. Me.), 3 Story 79, Fed. Cas.

No. 14,715 7

U.S. v. Collins (C. C. N. Y.), Fed. Cas. No. 14,834 7

U. S. v. Fisher, 2 Cranch. 358, 2 L. Ed. 304 8

U.S. v. Gilbert Associates, 345 U.S 361 13

U.S. v. Martin Fireproofing Corp. (C. C. Ohio 1948),

168 Fed. (2) 808 7

U. S. v. Mechanics Bank (D. C. Pa.), Fed. Cas. No.

15,756 _- 7

U.S. v. Security Trust (1950), 340 U.S. 47, 95 L. Ed.

53 ; 4, 6, 12, 13

U.S. v. Texas, 314 U. S. 480, 86 L. Ed. 356 7

U. S. v. Waddill, 323 U. S. 353, 89 L. Ed. 294 7

Winston-Salem v. Powell — Co. (1937). 7 Fed.

Supp. 424 8

Ohio Courts.

Benedict v. Peters, 58 O. S. 527 5

Liebman v. Ashbaker, 36 0. S. 94 5

Ma'key ». Ruggles (1923), 24 O.N.P. (N.S.) 433 9

McCombs v. Howard, 18 O. S. 422 5)

Ohio Auxiliary Fire Alarm Co. v. Heisley (Circuit

Court of Cuyahoga County, 1893) 7 C. C. 483; 4

C.D. 691

Oil Well Supply Co. v. Koen, 64 O. S. 568

Pilgrim Distributing Corp. v. Galsworthy, 148 O. S.

567 4

Rempe v. Ravens, 68 O. S. 113 4

Shorten v. Drake (1882), 38 Ohio St. 76 9

St. John v. Parson, 54 O. App. 420 4

Wright, et al. v. Franklin Bank, et al., 59 Ohio St. 80 10

Other State Courts.

Bishop v. Black (1951), 64S. E. (2) 167

Hopkins v. Duffy (Pa.), 9 Lane. Bar 125

Louisiana Stute University v. Hart (Louisiana Su-

preme Court, 1946), 210 La. 78, 26 So. (2d) 361,

174 A. L. R. 1366 erm eS

Tildestly Coal Co. v. American Fuel Corp. (1947),

130 W. Va. 720, 45S. E. (2) 750 — --_---- 8

United States v. Yates (Texas Court of Civil nia

(8 YS ee eee, 5

Texts and Qpinions.

5 Am. Jur. p. 87, sec. 815 PEL S Be SASS eat cin

5 Am. Jur. sec. 825. p. 93 ERC ANA As IS act SIN EEE

6 Am. Jur. p. 873, sec. 548 __- oe eee ee

Annotation, 83 L. Ed. 1239 E Date SLO TNE

7 Corpus Juris Secundum, Sections 254, 255, p. 430

et seq. E Uodley ap0ni Sag Ranh Ee

9

4 O. Jur. p. 201, sec. 158 ae) ee

4 O. Jur. p. 202, sec. 159 awe) 5

5

5

7

ao oOo O Ww

4 O. Jur. p. 248, secs. 190 to 192

4 O. Jur. p. 250, sec. 192

1 Op. A. G. 616 (1823)

Statutes and Rules.

Deering’s California Code of Civil Procedure (1949):

Sec. 537 5

Sec. 542a

Sec. 542b : 5

an

Internal Revenue Code:

Sec. $670 (26 U.S. C., 1946 ed., Sec. 3670) at, ae

Sec. 3671 (26 U.S. C., 1946 ed., Sec. 3671) _ -§ —s 8

Sec. 3672 (26 U.S. C., 1946 ed., Sec. 3672) _____ 7, 8

Ohio General Code:

EA TREN are Naan! Ye

I Oe eae

ON I oo oe as SO Bead ices tae

Revised Statutes:

Sec. 3466 (31 U.S. C., 1946 ed., Sec. 191) _____ 7, 8

Rules of Civil Procedure, sirsarsict ie Rule 64 Sans

RR Ry ae Set Ce RC es Sei . ae

Rule 38 of the United States Supreme Court_____.._ 14

In the Supreme Court of the United States

OCTOBER TERM, 1953.

No. 641

UNITED STATES OF AMERICA,

Petitioner,

V.

MICHAEL P. ACRI, DOLLAR SAVINGS & TRUST CO., THE

DOLLAR SAVINGS & TRUST CO. OF YOUNGSTOWN, OHIO,

GUARDIAN OF THE ESTATE OF MICHAEL P. ACRI, and

EDWARD ORAVITZ, ADMINISTRATOR OF THE ESTATE OF

JOHN ORAVEC, a.k.a. ORAVITZ, DECEASED.

On PeriTION FoR Writ oF CERTIORARI

To THE UNITED STATES Court OF APPEALS

For THE SIxTH CIRCUIT.

BRIEF OF RESPONDENT, EDWARD ORAVITZ,

ADMINISTRATOR OF THE ESTATE OF JOHN

ORAVITZ, DECEASED, OPPOSING CERTIORARI.

The Circuit Court of Appeals for the Sixth Circuit

affirmed a judgment of the U. S. District Court for the

Northern District of Ohio, Eastern Division, declaring an

attachment lien, duly perfected in a State court action for

wrongful death and resulting in judgment therein, to be

superior to a lien for income taxes filed subsequent to the

attachment, the District Court following the Ohio law that

such attachment is an “execution in advance” under the

Ohio statutes and superior to liens subsequently filed.

7 2

STATEMENT OF FACTS.

On February 17, 1947, Michael P. Acri shot and killed

John Oravec while the latter was partaking si refresh-

ments at the Acri Tavern. Found guilty of murder, he

was sentenced to a life term at the Ohio State Penitentiary.

Surviving are-Oravec’s parents, of whom he was the sole

support.

Acri and his wife were possessed of considerable prop-

erty; but the most liquid assets were cash savings and

Government bonds contained in a safe-deposit box at the

vault of the Dollar Savings and Trust Company in the

name of Acri, discovered by Mr. John Willo, Counsel for

the administrator of the Oravec estate.

On August 6th, 1947, suit for wrongful death was filed

in the Court of Common Pleas of Mahoning County, and

on the same day an attachment of the funds and securities

at the Dollar Savings and Trust Co. was issued and service

had on garnishee.

On January 19, 1949, on trial before Judge Doyle,

judgment in the sum of $18,500 was rendered in favor of

the administrator suing on behalf of Oravec’s parents. The

journal entry reads in part:

“The Court further finds that by an attachment

proceeding duly commenced in this action on the 6th

day of August, 1947, the plaintiff acquired a valid lien

upon the monies, bonds, credits and other property

belonging to the defendant, particularly, the monies,

bonds and valuables contained in No. 710 box at the

safety deposit vault of the Dollar Savings and Trust

Co. of Youngstown, Ohio: that said lien is a valid and

subsisting lien upon said property, as of said 6th day

of August, 1947, and for the full payment and satisfac-

tion of the judgment entered herein.”

Subsequent to the attachment for wrongful death on

August 6th, 1947, the Commissioner for Internal Revenue

3

had assessed taxes against Acri for the years 1942 to 1946.

The assessment list covering these taxes was received by

the Collector of Internal Revenue, and Demand for Pay-

ment was mailed to Acri on November 11, 1947.

On November 21, 1947, a tax lien was filed in the

office of Recorder of Mahoning County, Ohio, and on the

same date notice of tax lien and notice of levy were served

upon The Dollar Savings & Trust Company.

On June 14, 1948, The Dollar Savings & Trust Com-

pany was appointed guardian of the estate of Michael P.

Acri, who had been incarcerated upon his conviction for

the murder of Oravec.

ARGUMENT.

Whether the lien of an attaching creditor under the

provisions of the Ohio Statutes has priority over Federal

iax liens assessed, levied and recorded subsequently to

the date of the attachment lien.

NATURE OF ATTACHMENT LIEN UNDER OHIO

STATUTES.

The nature of an attachment has been stated to be a

“direct appropriation by authority of law of specific prop-

erty of the debtor, for the purpose of satisfying the

demand, and the lien thereby created is substantial and

enduring, as much as a mortgage or pledge.” 5 Am. Jur.

p. 87, Sec. 815.

The Ohio General Code, section 11837, provides:

“An order of attachment siia!l bind the property at-

tached from the time of service. A garnishee shall be

liable to the plaintiff in attachment for all property of

the defendant in his hands, and money and credits

due from him to the defendant, from the time he is

served with the written notice.”

4

The absoluteness of an attachment lien under the

Ohio statute, as distinguished from being a mere inchoate

right to lien or lis pendens, is stated by the Ohio Supreme

Court in Rempe v. Ravens, 68 O. S. 113 at 128:

“The writ of attachment or garnishment is in the

nature of an ‘execution in advance’ and the office and

purpose of such writ is to hold and bind the property

seized until final judgment in the attachment proceed-

ing, and if upon final hearing in the attachment suit

judgment is rendered in favor of the plaintiff, the

effect of such judgment is to give plaintiff the right

to enforce any lien he shall have acquired by his

attachment or garnishment against whatever interest

the defendant may have in the property attached or

garnished.”

The opinion of Justice Minton in United States v.

Security Trust (1950), 340 U. S. 47, 95 L. Ed. 53, founded

on the California statute and the decisions construing it,

does not harmonize with the laws of Ohio. There is no

decision in Ohio which holds an attachment lien to be only

a contingent or inchoate right, a mere lis pendens, which

gives it no priority over a subsequent lien. An attachment

in Ohio is considered a proceeding in rem, the lien whereof

prevails over subsequent liens unless released or the main

action dismissed. Pilgrim Distributing Corp. v. Gals-

worthy, 148 O. S. 567; St. John v. Parson, 54 O. App. 420:

Oil Well Supply Co. v. Koen, 64 O. S. 568. “The attaching

creditor acquires from the levy a right to have the property

held by the attaching officer, and under subsequent order.

a right to have the property sold.” 4 O. Jur. p. 201, sec.

158.

When an order of attachment is issued and executed

by seizure, the levy gives :ise to a lien. The General Code

of Ohio, Sec. 11837, specifically provides that “an order of

attachment shall bind the property attached from the time

K)

of service.” Liebman v. Ashbaker, 36 O. S. 94; McCombs v.

Howard, 18 O. S. 422. “The lien of the attachment does

not depend upon the sufficiency of the affidavit, but upon

the taking of the property under the writ.” Benedict v.

Peters, 58 O. S. 527 at 536; 4 O. Jur. p. 202, sec. 159.

The procedure of determining priorities in attachment

cases is provided by Sec. 11858, G. C. of Ohio. A trial of

the claimant’s right to the property can be had only at the

instance of such claimant. 4 O. Jur. p. 250, sec. 192. See-

tion 11859 G. C. of Ohio further provides:

“When several attachments are executed on the same

property, or the same person is made garnishee by

several parties, on motion of any of the plaintiffs the

court may order a reference to ascertain and report

the amounts and priorities of the several attachments.”

See also 4 O. Jur. p. 248, secs. 190 to 192.

INAPPLICABILITY OF CALIFORNIA LAW.

The California attachment statute differs materially

from the one in Ohio and the decisions interpreting the

former have no application to the latter. The California

Code of Civil Procedure, section 537, subjects the prop-

erty attached “‘as security for the satisfaction of any judg-

ment that may be recovered,” whereas the Ohio statute,

G. C. 11837, provides that “an order of attachment shall

bind the property attached from the time of service.” No

lien is expressly provided by the California statute when

the property attached is personal property, although a lien

is provided by section 542a when the attachment is on real

property, upon the recording of a copy of the writ together

with a description of the property attached. As to attach-

ments on personal property, section 542b provides:

“An attachment or garnishment of personal property

* * * shall cease to be of any force and effect and the

6

property levied on be released from the attachment or

garnishment at the expiration of three years after the

issuance of the writ of attachment under which said

levy was made.”

Construing the California statute in an attachment on

real property, in the case of United States v. Securities

Trust and Savings Bank, etc., 340 U. S. 47, 95 L. Ed. 53,

Mr. Justice Minton stated:

“The attachment lien gives the attachment creditor no

right to proceed against the property unless he gets

judgment within three years or within such extension

as the statute provides. Numerous contingencies

might arise that would prevent the attachment lien

from ever becoming perfected by a judgment awarded

and recorded * * *. He had a mere caveat of a more

perfect lien to come.”

Inasmuch as the Government depends upon the de-

cision of the above cited California case, we believe it will

aid the Court for us, at this time, to quote further from

Mr. Justice Minton’s decision:

“The effect of a lien in relation to a provision of

federal law for the collection of debts owing the United

States is always a federal question. Hence, although a

state court’s classification of a lien as specific and

perfected is entitled to weight, it is subject to re-

examination by this Court. On the other hand, if the

state court itself describes the lien as inchoate, this

classification is ‘practically conclusive.’ Illinois vs.

Campbell, 329 U. S. 362, 371. The Supreme Court of

California has so described its attachment lien in the

case of Puissequr vs. Yarbrough, 29 Calif. 2d 409, 412,

by stating that ‘the attaching creditor obtains only a

potential right or a contingent lien.’ Examination of

the California statute shows that the above is an apt

description. * * *”

——

7

PRIORITY OF ATTACHMENT LIEN.

The holder of a mechanic’s lien, though ordinarily not

a “mortgagee, pledgee, purchaser or judgment creditor”

within the meaning of Sec. 3672 (2) U.S. C., was held in

the Taylorcraft case, U. S. v. Martin Fireproofing Corp.

(C. C. Ohio 1948), 168 Fed. (2) 808, to have priority over

a subsequent income tax lien. See also Re Carswell Con-

struction Co., 13 Fed. (2) 667. Other decisions are of

similar effect and give ai attachment lien, perfected prior

to the filing of an income tax lien, priority over the latter;

Louisiana State University v. Hart (1946), 210 La. 78, 174

A. L. R. 1366; United States v. Yates (Tex. 1947), 204

S. W. (2) 399. These cases, distinguishing the Mackenzie

case (C. C. 9, Cal.) 109 Fed. (2) 540, proceed upon the

theory that the nature of the rights flowing from an

attachment must be determined by the law of the state.

Spokane County v. United States, 279 U. S. 80, 73 L. Ed.

621; United States v. Waddill, 323 U.S. 353, 89 L. Ed. 294;

New Orleans v. Harrell, 134 Fed. (2) 399; United States v.

Texas, 314 U. S. 480, 86 L. Ed. 356, cited in Louisiana

University case, supra. The same rule was applied to liens

under Sec. 3466 (U.S. C. Sec. 191, Title 31) for “debts due

to the United States.”’ United States v. Canal Bank (C. C.

Me.), 3 Story 79, Fed. Cas. No. 14,715; U. S. v. Collins

(C. C. N. Y.), Fed. Cas. No. 14,834; U. S. v. Mechanics

Bank (D.C. Pa.), Fed. Cas. No. 15,756; Hopkins vs. Duffy

(Pa.), 9 Lane. Bar 125; United States v. Acres (Mo. 1947),

73 Fed. Sup. 820.

It was also ruled by the Attorney General (1823), 1

Op. A. G. 616, that the priority of the United States cannot

reach back over any valid lien, whether it be general or

specific.

In the instant case there is no lack of specificity in

the lien perfected by the attachment; the moneys and se-

8

curities have been specifically levied on and the attach-

ment lien affected as provided by statute, before the Gov-

ernment has taken any steps to assert its lien.

PRIORITY OF “DEBT DUE UNITED STATES.”

Section 3466 of the Revised Statutes, 31 U. S. C. A.

sec. 191, provides that all debts owed to the government

shal] have a prior right to being paid first. This statute is

wholly inapplicable, because at the time we obtained our

levy under the attachment there was no debt due the

United States for income taxes, nor lien effected therefor

under the provisions of the Internal Revenue Act, sections

3670, 3671 and 3672, 26 U.S.C. A. No priority or lien for

the tax could be claimed until the collector of internal

revenue has received the assessment list, made demand for

payment upon the taxpayer, and filed the notice of lien at

the office of the county recorder. In our case all of this _

statutory procedure was subsequent to the attachment and

therefore no debt or lien existed in favor of the govern-

ment at the time our attachment was perfected.

Furthermore, the priority provided by section 3466

applies only to insolvency cases. It has been held that this

section does not give priority to a tax claim, or creates a

lien in favor of the Government, in the absence of insol-

vency of the taxpayer. Winston-Salem v. Powell Paving

Co. (1937), 7 Fed. Supp. 424; Bishop v. Black (1951), 64

S. E. (2) 167; Re Rowe Bros., 18 Fed. (2) 658; Tildestly

Coal Co. v. American Fuel Corp. (1947), 130 W. Va. 720,

45 S. E? (2) 750; U. S. v. Fisher, 2 Cranch. 358, 2 L. Ed.

304, opinion by Marshall, C.J. See also 6 Am. Jur. p. 873,

sec. 548 and cases in Annotation 83 L. Ed. 1239, where

liens obtained by execution levies were held superior to

the claim of the United States for income taxes. In Ohio,

as previously shown, an attachment is treated as an execu-

tion in advance.

9

OPERATIVE EFFECT OF ATTACHMENT LIEN.

It is well recognized in the great majority of jurisdic-

tions that an attachment properly obtained either by seiz-

ure or garnishment proceedings creates a specific lien

which operates on the property concerned from the date

of service of the writ of attachment. 7 Corpus Juris Secun-

dum, Sections 254, 255, p. 430 et seq.; 5 American Juris-

prudence, Section 825, p. 93. In Ohio this rule clearly pre-

vails by force of the provisions of Ohio General Code

Section 11837, that ‘an order of attachment shall bind the

property attached from the time of service.”

This statutory rule was recognized and reiterated in

Ohio Auxiliary Fire Alarm Co. v. Heisley (Circuit Court

of Cuyahoga County, 1893) 7 C. C. 483; 4 C. D. 691,

wherein the first syllabus provides in part:

“The service of a writ of garnishment upor a party

claimed to be indebted to the defendant binds in his

hands the property he may have belonging to the

defendant at the time he is served with the writ.”

And in Malkey v. Ruggles (1923), 240. N.P. (N.S.)

433, 434, it was stated that “under the provisions of Gen-

eral Code an attachment is a lien from the time of seizure.”

The Supreme Court of Ohio at a very early date

announced the rule that contests involving priorities be-

tween attachment and other lien claims were to be deter-

mined by application of the maxim, “qui prior est tempore

potior est jure.”” Shorten v. Drake (1882), 38 Ohio St. 76.

It was followed by Justice Minton in the New Britain case

(Adv. Rep. U. S. L. Ed. Vol. 98, p. 289). This priority of

time rule has been applied in holding an attachment lien

to be superior to a subsequently issued execution. Malkey

v. Ruggles, 24 O. N. P. (N.S.), 433. It has also been held

that an attachment lien is superior to an unrecorded mort-

10

gage. Wright, et ai. vs. Franklin Bank, et al., 59 Ohio St.

80.

From the foregoing it appears indisputable that the

attachment lien of the administrator is superior to the gen-

eral lien of the United States for income taxes in the instant

matter since the attachment lien was obtained some three

months before the Collector of Internal Revenue either

received the assessment lists, demanded payment of de-

linquent taxes from Acri, or filed the applicable Notice

of Tax Lien. This concept has been applied in the follow-

ing decisions which concern the precise question presented

herein.

In the case of Louisiana State University vs. Hart,

(Louisiana Supreme Court, 1946), 210 La. 78, 26 So. (2d)

361, 174 A. L. R. 1366, the University brought suit for

$75,000 on an alleged overpayment for furniture purchased

from one Smith. The suit was filed on July 25, 1939, and

a writ of attachment was issued the same day.

On February 13, 1940, the United States Commis-

sioner assessed income taxes, penalties and interest in the

amount of some $305,000 against Smith for the years 1936,

1937 and 1938. On February 15, 1940, the Collector of

Internal Revenue received the Commissioner’s assessment

list and on the following day filed proper notices of tax

liens. Subsequent to this time the University recovered

judgment in the amount of $25,000 against Smith.

In the suit which ensued on the question of the pri-

ority of the University’s lien over that of the Government's

for income taxes, the Court held as follows in the fourth

syllabus of the A. L. R. report:

“A federal tax lien for income taxes and penalties

arising between the date of attachment of the tax

debtor’s property and the date of judgment, which

maintained it, is subordinate to the lien resulting from

11

the attachment, and the attaching creditor is to be

preferred to the United States in the disposition of the

proceeds of the property seized under the writ of at-

tachment.”

In the case of United States v. Yates (Texas Court of

Civil Appeals, 1947) 204 S. W. (2d) 399, the plaintiff,

Yates, brought an action to recover judgment against one

Russell, for amounts due for rent of equipment and labor

on a construction job. The United States intervened.

claiming prior liens on the basis of “!ussell’s delinquent

taxes. The iacts reported disclosed that Yates perfected

an attachment lien on May 15, 1944, while the Govern-

ment did not file its Notice of Tax Lien until May 26, 1944.

The Court, in affirming judgment for Yates on his attach-

ment lien, held in the second syllabus:

“A specific attachment lien, levied on airport con-

struction contractor’s property before date on which

Federal Government fixed its tax lien on proceeds of

sale of attached property, was entitled to priority over

government’s lien, though attaching creditor’s claims

were not reduced to judgment.”

In this regard it will be noted that in Louisiana State

University v. Hart, 210 La. 78, 26 So. (2d) 361, 174 A. L.

R. 1366, supra, the Court at page 1370, A. L. R. report,

said:

“The United States relies on the case of Mackenzie v.

United States, 109 F. (2d) 540, but a reference to

that case shows that the lien of the government arose

prior to the issuance of the attachment, while in this

case it arose subsequent to the attachment.”

And in United States v. Yates, 204 S. W. (2d) 399,

supra, the same distinguishing factor is both apparent and

was noted by the court.

12

CONCLUSION.

The undisputed facts developed in this case clearly

establish that by virtue of the defendant administrator's

diligence in attempting to protect the rights of the bene-

ficiaries of his decedent’s estate-—he has succeeded in

establishing a valid lien under the law of the State of

Ohio to the extent of $18,500, which is prior in time not

only to the lien of the United States provided for under the

Internal Revenue Code, but prior to any assessment and

demand made against Acri for his delinquent income taxes.

The administrator’s lien, as thus established, being prior

in time, is therefore prior in right under the established

law.

The Government is relying upon the opinion of Mr.

Justice Minton in United States v. Security Trust, supra.

Sufficeth to say that there was no appearance or briefs filed

on behalf of the defense in that action, the proceedings

there before the Supreme Court were absolutely ex parte.

The lien under the Ohio law is absolute and not con-

tingent upon being enforced within three years as provided

by the California Statute. To apply the California law in

the instant case would amount to a repeal and annulment,

by judicial fiat, of the Ohio statutes relating to priorities of

lien in attachment cases, contrary to the well established

principles by the decisions of both the Supreme Courts of

the United States and the State of Ohio. (See Conformity

Rule 64, Rules of Civil Procedure, U.S. C. A. Title 28.)

In the words of the District Court:

“Under Ohio law, Oravitz acquired a valid lien of

the requisite specificity on Acri’s property as of the

date of the commencement of the attachment proceed-

ing. Ohio General Code Secticn 11837. Illinois v.

Campbell, supra.

13

The subsequent receipt of the assessment list Ls

the Collector and the filing of an income tax lien by

him accords the Government's lien only second place.

26 U.S. C. Section 3671.

The case of U. S. v. Security Trust and Savings

Bank, supra, relied upon the Government, dealt with

a California statute giving no such effectiveness to

attachment proceedings and liens as does the Ohio

statute.

The Ohio courts have characterized the attach-

ment lien under Ohio law as an ‘execution in ad-

vance,’ Rempe & Son v. Ravens, 68 O. S. 113: Green

v. Coit, 81 O. S. 280, and accord it equal standing with

an execution lien. Shorten v. Drake, 38 O. S. 76. Thus

they treat the attachment lien as perfected at the time

the attachment is made. ;

In the interest of orderly administration of jus-

tice in matters of concurrent jurisdiction, this Court

should respect the state court's characterization of the

attachment lien under Ohio law.”

This case differs from the case of United States vr

Gilbert Associates, 345 U. S. 361, where a specific federal

tax lien was given priority over a general town lien for

taxes in the distribution of an insolvent estate; or the

Security Trust case, 340 U. S. 47, where no lien existed

under the California law in an attachment of personal

property; or the New Britain case (Advance Reports of

U. S. Supreme Court, Law Edition, Vol. 98, p. 289), where

the federal lien was perfected before the statutory lien

of a city, the Supreme Court in the latter case basing its

decision on the principle of “first in time, first in right.”

Since justice must be equal to all, it would seem that

the principle should be equally applied to the attachment

lien here, perfected and lodged against specific property

long before any steps have been taken by the government

to assert its claim. The very language of Mr Justice

14

Minton in the New Britain case, supra, that “a prior lien

gives a prior claim which is entitled to prior satisfaction

out of the subject it binds,” permits no other conclusion.

He further observed that “Congress had this cardinal rule

in mind when it enacted Section 3670." The Government

had neither a debt nor lien at the time the property was

attached. No federal question decided in conflict with

applicable decisions of this Court, as contemplated by

Rule 38 of this Court, is here involved and the petition

for certiorari should accordingly be denied.

Respectfully submitted,

Joun A. WILLOo,

Francis B. KAvANAGH,

IsRAEL FREEMAN,

Attorneys for the Administrator,

Edward Oravitz, Respondent