Hays v. Wagner

• Citation: 150 F. 533
• Decision Date: 11 February 1907
• Docket Number: 1,542.
• Parties: HAYS v. WAGNER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

150 F. 533

HAYS v. WAGNER et al.

No. 1,542.

United States Court of Appeals, Sixth Circuit.

February 11, 1907

Gilbert H. Stewart, for appellant.

John N Van Deman, for appellees.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This is an appeal from an order made December 26, 1905, adjudicating the appellant a bankrupt. The case came here first an a transcript containing an entry of adjudication of the date of July 14, 1905. This transcript was returned with a writ of certiorari, suggesting a diminution of the record and directing its correction and return. When the case reached the lower court, the appellant (respondent below) made a motion for a nunc pro tunc entry setting aside the entry of adjudication of July 14, 1905, and entering such order and judgment as of the date of December 26, 1905, when the same was made. This motion was granted, the nunc pro tunc order prayed for made, and, at the same time, on motion of the petitioners below, an additional nunc pro tunc entry was made, as follows:

'It appearing to the court that, since the filing of the petition herein, one of said petitioners, to wit, Harry G. Wagner, has been adjudged a bankrupt, and J. D. Barnes, of Sidney, Ohio has been duly appointed as his trustee in bankruptcy, and that the bankrupt court has ordered and directed that said J D. Barnes, as such trustee, come into this case, and prosecute the same, it is therefore ordered by the court that the said J. D. Barnes, trustee in bankruptcy of Harry G. Wagner, be, and is, hereby substituted as petitioning creditor for and instead of said Harry G. Wagner, but that this action may proceed under the same title as heretofore. (To which order of the court the said Hays excepts.)

'It further appearing to the court that there was filed in this case, on or about the 31st day of January, 1906, a certain paper purporting to be all the evidence taken and considered by the court, upon the hearing of this cause, but that the same did not so contain all of said evidence, and was filed without the authority of the court. It is therefore ordered and adjudged by the court that said alleged statement of evidence be, and is, stricken from the record and files of this case, and that another and complete statement, which has been agreed to between the parties and approved by the court, be substituted therefor and ordered filed as of the said date.

'Tayler, J.

'May 28, 1906.'

The complete statement of evidence substituted in accordance with this order reads as follows:

'At the hearing of this cause before Judge Tayler, counsel for defendant admitted in open court that the answer of defendant, 'denying that Harry G. Wagner had a provable claim,' related solely to the fact that he (Wagner) had been adjudged a bankrupt since the petition in this cause was filed, and while he (Wagner) did have the claim, as set forth in the petition at the time said petition was filed, his right and ownership therein had all passed to his trustee in bankruptcy. Thereupon counsel for petitioners admitted the bankruptcy alleged, and that J. D. Barnes, of Sidney, Ohio, is his trustee in bankruptcy, and said J. D. Barnes as such trustee was thereafter, upon his own application made in pursuance of the order of the bankrupt court, by order of this court, substituted as petitioning creditor as and for said Harry G. Wagner. On the issue joined on the intervening petition of George S. Haydock, trustee of the Decatur Buggy Company, the president of said company, Harry G. Elwood, testified as follows, to wit: O. L. Hays and Edward Flickinger knew all about the financial condition of the Decatur Buggy Company, and were both liable upon consideration of its paper, and suggested to me a plan to unload the indebtedness upon other parties, and Hays suggested that we do so by increasing the stock from sixty thousand dollars ($60,000) to one hundred thousand dollars ($100,000), then bond the plant for one hundred thousand dollars ($100,000), and he (Hays) could sell the bonds and pay off the debts upon which he was liable; and thereupon, at his request, I took the necessary steps to authorize the increase, and did procure such authority, and then called a meeting of the stockholders, which O. L. Hays and Edward Flickinger attended, at which time they each and myself subscribed ten thousand dollars ($10,000) to the increase of the capital stock of said the Decatur Buggy Company, but O. L. Hays was not able to place the bonds, and the scheme failed, and O. L. Hays never paid any part of said subscription. That O. L. Hays was in no way deceived, or induced by me or any other officer of the Decatur Buggy Company, to make said subscription. He knew the true condition of the company, and this was his scheme, to get out from under the paper of the company that he was personally liable upon. That said the Decatur Buggy Company is now bankrupt, and its total assets are less than $100,000, and its liabilities are more than $500,000. That George S. Haydock is trustee in bankruptcy of said company. This was all the evidence offered by the petitioners. The foregoing are all the facts or evidence which were before the court when the said O. L. Hays was adjudged bankrupt.'

The appellant objects to the additional nunc pro tunc entry thus made...