Marin v. Ellis

Citation15 F.2d 321
Decision Date13 October 1926
Docket NumberNo. 287.,287.
PartiesMARIN v. ELLIS.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Richard Converse, of Minneapolis, Minn. (Kay Todd, Walter Fosnes, and Charles W. Sterling, all of St. Paul, Minn., on the brief), for petitioner.

A. M. Thompson, of Eveleth, Minn., for respondent.

Before SANBORN, STONE, and KENYON, Circuit Judges.

WALTER H. SANBORN, Circuit Judge.

W. A. Marin, the trustee in bankruptcy of the estate of Robert Ellis, who was adjudged bankrupt on December 27, 1922, filed in this court on October 19, 1925, his petition to revise in matter of law the order of the District Court below, dated August 11, 1925, whereby it approved and confirmed the order of the referee in bankruptcy, dated April 27, 1925, by which the latter discharged and dismissed after final hearing on pleadings and evidence the petition of W. A. Marin, as trustee, filed November 7, 1923, for an order on the bankrupt, Ellis, to turn over to him goods, wares, merchandise, and cash of the value of $15,000, which the trustee alleged was property of the bankrupt in his possession and under his control, which he was concealing from his trustee in bankruptcy.

The order of the referee of April 27, 1925, it will be noticed, was founded on his finding on pleadings and evidence that the trustee had failed to prove that the bankrupt, at the time that order was made, had possession or control of and could turn over to the trustee those goods, wares, and merchandise, and that cash or the proceeds thereof, of the value of $15,000, or to any other amount, which the trustee alleged he had on December 27, 1922, when he was adjudged a bankrupt, and which, or the proceeds thereof, or some part thereof, the trustee had alleged that the bankrupt then and thereafter from December 27, 1922, to April 27, 1925, for two years and four months, held back, had and could turn over on April 27, 1925. The state of facts thus alleged was a very improbable one and a very difficult one to prove. This was especially so, in view of the fact that Ellis was adjudged a bankrupt on December 27, 1922, that the trustee did not file his petition with the referee for the turn-over of this property, or any part of it, until November 27, 1923, more than 10 months after the adjudication, and did not bring his petition on for hearing before the referee until June 17, 1924, more than 17 months after the adjudication.

The legal presumption is that a bankrupt, who at the time of his adjudication in bankruptcy has and unlawfully holds back from his trustee in bankruptcy a part of his property, or of its proceeds, continues to hold it or them, but this presumption grows weaker as time passes, until it finally ceases to exist. The record presented to this court does not show that the trustee ever claimed, or notified the bankrupt that he would claim, that he had held back any of his property to which the trustee was entitled, until he filed his petition for the turn-over order, more than 10 months after the adjudication. In this state of the case the legal presumption that the bankrupt held that merchandise and cash, which the trustee alleged that he unlawfully retained at the time of his adjudication, within his control, so that he could turn it or its proceeds over to the trustee when the referee denied the petition for the turn-over on April 27, 1925, was certainly not conclusive. The presumption that he then so held it was rebuttable by competent evidence of facts, of circumstances, of the lapse of time, and the question whether or not the bankrupt had in his control and could turn over the property, or the proceeds of it, which the trustee alleged he unlawfully retained, was conditioned by the evidence presented to the referee and to the court below.

This is a petition to revise in...

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10 cases
  • Maggio v. Zeitz In re Luma Camera Service, Inc
    • United States
    • United States Supreme Court
    • February 9, 1948
    ...the presumption of continued possession as one which 'grows weaker as time passes, until it finally ceases to exist' (C.C.A.8th in Marin v. Ellis, 15 F.2d 321) and as one 'only as strong as the nature of the circumstances permits' and which 'loses its force and effect as time intervenes and......
  • Myres v. United States, 13714.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 13, 1949
    ...States, 8 Cir., 145 F.2d 3, 5, and cases cited. 2. The burden of demonstrating prejudicial error is upon the appellant. Marin v. Ellis, 8 Cir., 15 F.2d 321, 322; Metropolitan Life Insurance Co. v. Armstrong, 8 Cir., 85 F.2d 187, 195; Kimball Laundry Co. v. United States, 8 Cir., 166 F.2d 85......
  • In re Sawyer's Petition, 11464.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 1, 1956
    ...63 L.Ed. 754; McGivern v. Northern Pac. R. Co., 8 Cir., 132 F.2d 213, 216; Jennings v. United States, 5 Cir., 73 F.2d 470; Marin v. Ellis, 8 Cir., 15 F.2d 321, 322; Parker v. Elgin, 6 Cir., 5 F.2d 562, 564. Contra: Inman Bros. v. Dudley & Daniels Lumber Co., 6 Cir., 146 F. 449; Westall v. O......
  • Kimball Laundry Co. v. United States, 13494.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 11, 1948
    ...The Government surrendered possession to the Company on March 23, 1946, after the termination of the trial of this case. 3 Marin v. Ellis, 8 Cir., 15 F.2d 321, 322; In re Schulte-United, Inc., 8 Cir., 59 F.2d 553, 559; Metropolitan Life Ins. Co. v. Armstrong, 8 Cir., 85 F.2d 187, 195. 4 Den......
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