Robinson v. Wilson. The judgment of the District Court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. All the justices concurring. An attachment was levied on land of a debtor which afterward became his homestead; afterward, and within four months of the attachment, the debtor was adjudged a bankrupt. Held, that the homestead did not pass to the assignee in bankruptcy, and that the bankruptcy did not dissolve the attachment. OTION by Robinson for an order discharging a judgment against him and in favor of Wilson. MOT Hulett & McCleverty, for plaintiffs in error. McComas & McKeighan, for defendant in error. BREWER, J. This is a proceeding to review the action of the District Court overruling a motion of plaintiffs in error, defendants below, to have satisfaction of a judgment entered of record because of the fact that, after the rendition of the judgment, they had each received a discharge in bankruptcy. The motion was made under section 3 of chapter 12 of the General Statutes. Looking simply at the letter of that section, and it would seem as though the motion ought to have been sustained; for the language is general, and provides that, "in any case in which any person has been or may hereafter be discharged, and shall produce a certificate of discharge * * to the court in which any judgment is of record, it shall be the duty of any such court to enter a discharge; * * and thereafter any such judgment shall be deemed fully discharged and satisfied." But this whole statute is based upon and in recognition of the United States Bankrupt Law. It does not intend, even if it were possible so to do, to release par * Robinson v. Wilson. ties from debts not discharged under that law. It aims simply to enable a party to obtain in the State courts the benefit of the rights granted to him by the Federal law. So, though it declares that "in any case," upon the production of the discharge, it is the duty of the court, etc., it applies only to those cases in which the bankrupt's discharge does, as a matter of fact, under the Federal law, operate to release and discharge the judgment debt. Any other construction would expose the statute to grave constitutional objections. The question, therefore, is, whether this judgment was one which, by the proceedings in bankruptcy, was released and discharged. If it was, the motion ought to have been sustained; if not, the motion was properly overruled. What are the facts concerning the judgment, and the debt upon which it was based? The action in the State court was upon a promissory note was commenced June 11, 1873, and was accompanied by the issue of an attachment. On the same day this attachment was levied upon three lots in Fort Scott. A motion was subsequently made to discharge the levy of the attachment, on the ground that the property attached was the homestead of one of the defendants, and, therefore, not subject to seizure under either an attachment or execution. But as it appeared upon the hearing that the property did not become a homestead until about the 1st of July, and after the levy of the attachment, the motion was properly overruled. Bullene v. Hiatt, 12 Kan. 98. On the 9th of January, 1874, judgment was rendered, and an order made for the sale of the attached property. On the 25th of August, 1873, after the commencement of the action in the State court, and after the property had become a homestead, a creditor's petition in bankruptcy was filed against the plaintiffs in error, and on June 2, 1874, discharges in bankruptcy were granted. During the pendency of the action in the State court, no application was made for a stay of proceedings on account of the proceedings in the bankrupt court. The plaintiff below never proved his debt in the bankrupt court. Was the attachment dissolved, and the judgment debt discharged by the proceedings in bankruptcy? The property attached, being the homestead, and exempt under the State law, at the time of the commencement of the proceedings in bankruptcy, did not pass to the assignee in bankruptcy. It remained the property of the bank. rupt, free from any control or interference on the part of the assignee. Nor does it seem to us, notwithstanding some decisions in VOL. XXII. — 35 Robinson v. Wilson. the Federal courts to that effect, that the bankrupt took the property as a purchaser from the assignee. The property never passed away from the bankrupt. It remained his, to all intents and purposes, the same as though no bankrupt proceedings had been instituted. U. S. Rev. Stats., §§ 5044, 5045; Rix, Assignee, v. Capital Bank, 2 Dill. 367; Bump on Bankruptcy (7th ed.), 144. We think, too, that as this property remains with the bankrupt, jurisdiction to enforce any liens thereon remains with the State court. Whether the bankrupt court has jurisdiction also, and whether it can stay any proceedings in the State court, we are not to inquire, for those questions are not in the case. Rix, Assignee, v. Capital Bank, supra; In re Everitt, 9 Bankr. Reg. 90; Bump on Bankruptcy, 146, 461, and cases cited. But it is said that the only lien the plaintiff had was one of attachment created less than four months prior to the commencement of the bankruptcy proceedings, and that the assignment to the assignee dissolved all such attachments, and consequently destroyed any lien. The language of the act is, "and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings." (§ 5044.) The subsequent section describes the kinds of property exempt from this assignment. The two sections are, of course, to be construed together, and the section quoted, therefore, should be construed as though it said expressly, "shall vest the title to all such property and estate, both real and personal," as is not exempt from the operation of the bankrupt act, "although the same" (that is, the unexempt property, the property conveyed) "is then attached, * and shall dissolve any such attachment"— that is, any attachment on the property not exempt, the property transferred by the assignment to the assignee. We are aware of decisions in the Federal courts contrary to these views, and holding that the assignment dissolves all attachments within four months, whether upon exempt property or otherwise. In re Ellis, 1 Bankr. Reg. 555; In re Hambright. 2 id. 498; In re Stevens. 5 id. 298. We think, however, that the just and fair construction of the act is as we have given it. As the bankrupt court gets no jurisdiction of the ex Lewis v. Commissioners of Marshall County. empt property, it would seem that it should take none over any specific liens upon such property. It may be remarked that the exempt property in this case is exempt, not as among the articles named in the bankrupt act, but as exempt from seizure under attachment and execution by the State law, and, therefore, permitted by the Bankrupt Act to be exempt from its operation. Bump on Bankruptcy (7th ed.), 142-147. That which makes this case one sui generis, is the fact that, at the date of the attachment, the property was not exempt from seizure, but was at the time of the commencement of the bankrupt proceedings. The attachment, therefore, was good and created a specific lien upon the property attached. Bullene v. Hiatt, 12 Kan. 98. It remained the property of the bankrupt, and the bankrupt court, not taking the property, did not disturb the specific lien. Whether if, after the sale of the attached property, there should remain a balance on the judgment, this balance would be beyond the reach of the bankrupt's discharge, is a matter we need not now inquire. The question may never arisɔ. As the question now stands, we think there was no error in overruling the motion to enter a discharge of the judg ment. The decision of the District Court will be affirmed. A canvassing board has no power to throw out returns of votes which are genuine and regular in form on the ground of fraud in the election; and if it does throw out such returns, may be compelled by mandamus to reassemble and make a correct canvass. (See note, p. 279.) M ANDAMUS against the commissioners of Marshall county, who constituted the board of county canvassers, to require them to reassemble and properly canvass the votes of said county, cast at an election for the office of county clerk. Lewis v. Commissioners of Marshall County. The candidates for said office at said election were the petitioner Lewis and one McIntire, who is made a defendant herein. The petition alleged in substance that the plaintiff in fact received a majority of the lawful votes cast for said office; that the votes of the several voting precincts in said county were duly returned to the county clerk and duly filed; that the board of county commissioners, constituting the board of county canvassers, duly assembled for the purpose, opened and canvassed the returns from the several precincts, except the returns from the precinct of Waterville, and did thereupon determine that the petitioner had received 856 votes, and that said McIntire had received 972 votes for said office of county clerk, and that said McIntire had received the greatest number of votes for said office and was duly elected; whereas the said petitioner alleged that he had received in said precinct of Waterville 280 votes, while the said McIntire received only 91 votes therein; and that if such votes had been canvassed, and they legally should have been, he would have been declared elected. The commissioners admitted refusing to canvass the return from Waterville and answered that one H. S., and divers other persons to defendants unknown, entered into an unlawful and corrupt agreement and conspiracy to defeat the election of said J. G. McIntire, and to procure the election of said plaintiff; and that in pursuance of said agreement and conspiracy, that said H. S., J. W. S., C. B., E. C. W., and J. A. E., or some of them, with other persons to defendants unknown, on the morning of the election, and before the polls were opened in said Waterville precinct, met at the voting-place in said precinct, and placed in the ballot-box, "fraudulently and unlawfully, a large number of ballots," and that during the day "the persons above stated kept and had in their possession and control the said ballot-box, poll-books, and tallysheets," etc.; that the "judges and clerks, or some of them, unlawfully and fraudulently received and deposited into said ballotbox over 100 fraudulent ballots." The answer also alleges that " large number of the persons who voted at said Waterville precinct were voters in other counties of the State of Kansas than that of Marshall county." It also alleges that the "poll-books, tally-lists and ballots" sealed up by the judges of said Waterville precinct "to be delivered to the county clerk were never delivered to said county clerk at any time, but that other fraudulent and spurious poll-books, a 1 |