Dant & Russell v. JD Halstead Lumber Co.

Decision Date01 May 1939
Docket NumberNo. 8885.,8885.
Citation103 F.2d 306
PartiesDANT & RUSSELL, Inc., v. J. D. HALSTEAD LUMBER CO. J. D. HALSTEAD LUMBER CO. v. HAYS et al.
CourtU.S. Court of Appeals — Ninth Circuit

Zach Lamar Cobb and Earl A. Littlejohns, both of Los Angeles, Cal., for appellant.

Gene S. Cunningham and Charles A. Carson, both of Phoenix, Ariz., for appellee receiver.

Hubert F. Laugharn, Jack L. Powell, and Joseph Horton, all of Los Angeles, Cal., for appellee creditors' committee.

Before WILBUR, DENMAN, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from an order of the District Court for the Southern District of California by the J. D. Halstead Lumber Company, the defendant in a receivership suit, ordering the payment by the receiver of a dividend to the Halstead Company's creditors.

The proceeding in which the order for the payment of the dividend was made, began on December 14, 1937, in the filing of a petition by the receiver setting forth the then condition of the estate and recommending the payment to the creditors of a sum equal to 5 percent of their claims. The petition further stated that, in the opinion of the receiver, a further distribution of assets in the form of additional cash dividend "can be made within a period of approximately four months from the date of the petition". The prayer asked leave and direction from the court to pay to the creditors of the Halstead Company "such an amount upon said claims as a partial distribution of the assets of this receivership in the form of cash dividend, and for such other and further order as to this Honorable Court may seem just and proper in the premises."

The Halstead Company's answer to the petition denied "that a sum equal to five percent, or any other amount whatsoever, of said claims of creditors at the time of the establishment of said receivership, can now be safely paid, or that such, or any, payment ought to be made, and "denies that any proceeds whatsoever should now be distributed to said creditors, and denies that a further, or any distribution of assets in the form of an additional cash dividend can, or should be, made within a period of approximately four months from the date of said petition, or at any other time", and alleged certain affirmative defenses which will later be considered, and prayed that the petition of the receiver be denied and "for such other action as the court deems proper".

The hearing on the petition began on January 10, 1938, when certain evidence was offered in support of and against the distribution of the dividend. It was continued from time to time until May 2, 1938, over four months after filing the petition.

In the interim a Creditors' Committee, recognized by the court, and representing upwards of 82 per cent of the obligations of the Halstead Company, presented its report to the Court on April 27, 1938. The Committee reported that in its opinion a dividend of 20 percent then might safely and properly be ordered, and recommended that a decree be entered ordering a distribution to the creditors as a liquidating dividend "such proportion of the cash on hand as the receiver and the court may determine as being properly available for that purpose". The Halstead Company answered the report and denied that any distribution in excess of 5 percent could be made by the court under the allegations and prayer contained in the petition of the receiver.

When the hearing was resumed on May 2, 1938, there appeared, through their respective counsel, the receiver, the Creditors' Committee, the creditors and the Halstead Company. With all the parties in court, the receiver testified to the effect that in the 4½ months since the filing of his petition the condition of the estate so had changed that he was in a position to pay a dividend of 15 percent of the creditors' claims and recommended that such a dividend be ordered. With the Halstead Company and all these parties participating, the court proceeded to the consideration of the receiver's recommendation.

The evidence there adduced not only warrants the conclusion of the district...

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4 cases
  • Beneficial Industrial Loan Corp. v. Smith
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 22, 1948
    ...Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Gay v. Hudson River Electric Power Co., 2 Cir., 184 F. 689; Dant & Russell v. J. D. Halstead Lumber Co., 9 Cir., 103 F.2d 306. The words `final decisions,' like the equivalent `final judgments and decrees' in former acts regulating appella......
  • Rubert Hermanos, Inc. v. People of Puerto Rico, 3631.
    • United States
    • U.S. Court of Appeals — First Circuit
    • March 31, 1941
    ...Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; Gay v. Hudson River Electric Power Co., 2 Cir., 184 F. 689; Dant & Russell v. J. D. Halstead Lumber Co., 9 Cir., 103 F.2d 306. The words "final decisions," like the equivalent "final judgments and decrees" in former acts regulating appella......
  • Hancock Oil Co. v. Universal Oil Products Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 28, 1940
    ...claim. Credits Commutation Co. v. United States, 177 U.S. 311, 315, 20 S.Ct. 636, 44 L.Ed. 782 (intervention); Dant & Russell v. Halsted Lbr. Co., 9 Cir., 103 F.2d 306, 308, We see no reason to overrule our holding in In-A-Floor Safe Co. v. Diebold Safe & Lock Co., 9 Cir., 91 F.2d 341, 342,......
  • Johnson v. Superior Court, 5168
    • United States
    • Arizona Supreme Court
    • November 23, 1948
    ... ... latter two cases see: Dant & Russell v. J. D. Halstead ... Lumber Co., 9 Cir., 103 F.2d 306; Yoelin ... ...

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