Opinion
No. S71 C 49.
March 27, 1972.
James R. Robison, Robison Blanton, Sikeston, Mo., for plaintiff.
Kenneth L. Dement, Sikeston, Mo., for Lloyd Williams d/b/a Williams Heating Plumbing Co.
Manuel Drumm, Sikeston, Mo., for Ralph E. Boyer, Contractor, Inc.
Daniel Bartlett, Jr., U.S. Atty., and David W. Harlan, Asst. U.S. Atty., St. Louis, Mo., for the United States.
A.J. Seier, Cape Girardeau, Mo., for Trustee in Bankruptcy.
MEMORANDUM
This cause was originally filed by Ralph E. Boyer, Contractor, Inc., in the Circuit Court of Scott County, Missouri, by depositing with that court $3,770.27, and the other parties were impleaded. Thereafter, the cause was removed to this Court by the Internal Revenue Service. This Court has jurisdiction by virtue of 28 U.S.C. § 1444, 1446(d), and 2410.
The facts as stipulated by the parties are as follows:
1. The Circuit Court of Scott County, Missouri, entered a judgment against Lloyd Williams in favor of All-Temp, Inc., on May 9, 1969, in the amount of $15,352.70 in cause No. 5563.
2. The Circuit Court of Scott County, Missouri, issued a General Execution on said judgment in cause No. 5563 on November 5, 1969.
3. The Sheriff of New Madrid County, Missouri, issued a summons to Garnishee in aid of Execution in said cause on November 20, 1969, and served it on Ralph E. Boyer, Contractor, Inc., in New Madrid, Missouri.
4. Ralph E. Boyer, Contractor, Inc., owes Lloyd Williams, d/b/a Williams Heating Plumbing Company, the amount of $3,770.27, which indebtedness arises out of a contract between said Boyer and said Williams.
5. Loyd Williams, d/b/a Williams Heating Plumbing Company, owes the United States of America the sum of $5,785.99, plus accrued interest, for delinquent withholding taxes and Federal Insurance Contribution Act taxes for the fourth quarter of 1969 and the third quarter of 1970.
6. The Internal Revenue Service filed Notices of Lien with the Recorder of Deeds, Scott County, Missouri, on December 11, 1969, and February 21, 1970.
7. The Internal Revenue Service served a Notice of Levy on said Boyer on March 20, 1970.
8. Lloyd Williams filed a Petition in Bankruptcy and was adjudged bankrupt on March 30, 1970.
9. The delinquent taxes referred to in paragraph 5 of this stipulation were assessed against Lloyd Williams, d/b/a Williams Heating Plumbing Company, on October 3, 1969, November 3, 1969, and January 16, 1970.
When the Sheriff of New Madrid County, Missouri, issued a summons to Garnishee, Ralph E. Boyer, Contractor, Inc., a corporation, on November 20, 1969, the judgment creditor All-Temp, Inc., attached its lien against the $3,770.27 owed by Garnishee to Lloyd Williams, and is entitled to the money. See: Ferneau v. Armour Co., 303 S.W.2d 161 (St. Louis Mo.App. 1957). This lien is superior to that of the Internal Revenue Service, which was not filed with the Recorder of Deeds of Scott County until December 11, 1969, and February 21, 1970, and not served on Boyer until March 20, 1970.
26 U.S.C. § 6332(a) provides as follows:
"Except as otherwise provided in subsection (b), any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process."
When Boyer was served with a notice of levy by the Internal Revenue Service on March 20, 1970, the $3,770.27 in his hands previously owed to Lloyd Williams was already the subject of the attachment by All-Temp, Inc. See: United States v. 52.11 Acres of Land in St. Charles County, Mo., 73 F. Supp. 820 (E.D.Mo. 1947). Since the lien of All-Temp, Inc., attached more than four months before March 30, 1970, when Williams filed a petition in bankruptcy, the Trustee in Bankruptcy is not entitled to any portion of this money.
On November 22, 1971, the Court discharged the Garnishee and allowed him the sum of $300 in attorneys' fees and $15.00 in costs.
A judgment will be entered in favor of All-Temp, Inc., a corporation, directing the Clerk to pay to it the balance of said funds in his hands, less any costs owed to the state court or the federal court. The Clerk will disburse $300 to Boyer.