179 F. 222 (6th Cir. 1910), 2,007, In re Stewart

Docket Nº:2,007.
Citation:179 F. 222
Party Name:In re STEWART.
Case Date:May 03, 1910
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 222

179 F. 222 (6th Cir. 1910)

In re STEWART.

No. 2,007.

United States Court of Appeals, Sixth Circuit.

May 3, 1910

Page 223

G. H. Stewart, for petitioner.

J. N. Van Deman, for respondent.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

This is a proceeding under section 24b of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432)) to revise an order of the District Court affirming the order of the referee in bankruptcy stating the account of petitioner, as assignee under the Ohio state law of the bankrupt Otho L. Hays, and requiring petitioner to pay over to the trustee in bankruptcy the sum of $4,086.61, found by the referee to be in petitioner's possession and belonging to the estate of the bankrupt. The facts are these: The assignment from Hays to petitioner was made April 29, 1904. The assignee entered at once upon the performance of his duties under the assignment. Petition in bankruptcy was filed July 16, 1904, and thus less than three months after the assignment, the act of bankruptcy alleged being the assignment in question. The assignee resisted the petition for the adjudication in bankruptcy, carrying the contest through the District Court and into this court, where the decision of the District Court adjudicating Hays a bankrupt was affirmed. Hays v. Wagner, 150 F. 533, 80 C.C.A. 275. The adjudication

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in bankruptcy was first entered as of July 14, 1905. It was later entered as of December 26, 1905. Final adjudication was made March 15, 1907, under order of affirmance made by this court. A trustee was thereupon appointed. Meanwhile, there had been no receivership in the bankruptcy proceedings, the assignee being allowed to remain in possession of the assets. The assignee not having filed in the state court any account or report of his doings as assignee, that court, upon application of the trustee, ordered the petitioner to file his account in the District Court. The latter court, upon the application of the assignee, made an order to the same effect. Petitioner then filed his account in the District Court, showing receipts amounting to $18,131.17 (about two-thirds of which was for rentals collected through an agent), and claiming credits amounting to $12,409.72. The surplus of receipts over claimed credits, viz., $5,721.45, was, in connection with the filing of the account, turned over to the trustee. The items of the claimed credits were these: (1) Disbursements from April 30, 1904, to June 8, 1907, consisting largely of repairs, insurance, taxes, and commissions paid for collecting rents on real estate, together with $737.40 on account of the dower interest of the bankrupt's wife, all amounting to $6,657.03. This item was allowed by the referee in full. (2) Disbursements consisting largely of expenses directly connected with the administration of the trust, amounting to $618.24. This item was allowed in full by the referee. (3) A claim for commissions of the assignee upon moneys received and disbursed by him, computed according to the Ohio assignment statute, amounting to $483.25. This item was allowed by the referee at $321.64 (the amount provided by the bankrupt act), being a reduction of $161.61. (4) The bill of the law firm of Stewart & Stewart, of which firm petitioner was the senior member, for attorney's fees connected with the administration under the assignment, amounting to $370. This item was allowed in full. (5) The bill of said law firm of Stewart & Stewart for further legal services in proceedings under the assignment, the largest item being in connection with the sale of real estate and the report and confirmation of the same. This bill amounted to $360. This item was allowed at $185, being a reduction of $175. (6) The bill of Stewart & Stewart for professional services and advice in resisting the proceedings for adjudication in bankruptcy, $250. This item was entirely disallowed as a lien or preferred claim. (7) Expenses and disbursements of Stewart & Stewart in defending against said adjudication in bankruptcy, $270.92. This item was disallowed in toto. (8) The claim of the assignee for extra compensation for extraordinary services in administering the assignment, $3,500. This claim was disallowed in toto. The disallowed...

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