Hart-Parr Co. v. Barkley

• Decision Date: 28 February 1916
• Docket Number: 158.
• Citation: 231 F. 913
• Parties: HART-PARR CO. v. BARKLEY et al. In re TUXHORN.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 913

HART-PARR CO. v. BARKLEY et al.

In re TUXHORN.

No. 158.

United States Court of Appeals, Eighth Circuit.

February 28, 1916

Chester I. Long, of Wichita, Kan. (A. G. C. Bierer, of Guthrie, Okl and A. M. Cowan, of Wichita, Kan., on the brief), for petitioner.

Jesse D. Wall and E. L. Foulke, both of Wichita, Kan. (C. A Matson, of Wichita, Kan., on the brief), for respondents.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

This is a petition to revise an order of the District Court of the Western District of Oklahoma, denying the application of the Hart-Parr Company, a creditor, to have the judgment of said court, which adjudicated Julius Tuxhorn an involuntary bankrupt, vacated and set aside. As such an order is not appealable, it would seem that as to matters of law it may be reviewed by a petition to revise. B-R Electric &amp Telephone Manufacturing Co. v. AEtna Life Insurance Co., 206 F. 885, 124 C.C.A. 545.

The application to vacate the adjudication of bankruptcy alleged as the ground thereof that the alleged bankrupt, Tuxhorn, at the time the involuntary petition was filed, to wit, January 30, 1915, was a person chiefly engaged in farming or the tillage of the soil, and therefore could not be adjudicated an involuntary bankrupt. The court took the evidence upon this question and found the facts as follows:

'The bankrupt, prior to 1912, leased for three years the Nelson farm and the Adam Barkley farm, each being a quarter section, and was the owner of another quarter section in the same locality, which he acquired on May 5, 1911, where he had his residence and home until he left the state of Oklahoma in November, 1914. He farmed said tracts in 1912, and planted crops thereon in 1913, but did not raise much crop; the season being dry. In the spring of 1914, he plowed 60 to 70 acres on his own land, and planted about 25 acres in kaffir and maize thereon, and 8 to 10 acres in kaffir on the Nelson farm, but did not cultivate said crops, and the same were sold under attachment for about $36. He also raised about 115 bushels of wheat on his own land in the year 1914, and sold the same for $103.50; also raised there a small amount of barley. He owned and kept on his farm 6 to 8 head of horses and a few chickens, and used one or two of these teams in his threshing business. He did not raise sufficient feed on his farm for his horses, and bought feed for them in the spring of 1914. He did not cultivate or plant upon the Barkley farm in the season of 1914.

'The bankrupt was a single man. He kept his clothes, trunk, and papers in the house on his land, and on September 19, 1914, asked a Mr. Andrews and his wife, who resided there since that date and were employed with his threshing crew from about August 3, 1914, to September 19, 1914, to stay there until spring and harvest the kaffir and maize planted thereon. The total value of all crops raised in 1914 upon his land and the leased land was not over $250. From April 1, 1914, until August 1, 1914, he was on his land less than half the time, and after the threshing season began he was there on Sundays and when it rained. No plowing was done thereon after September 19, 1914. It was his custom to leave his farm for several days or weeks at a time, and turn on a windmill to furnish water for his horses and leave them in the pasture. When he was last at the farm his personal property there consisted of two two-row listers belonging to the engine, another lister, two wheat drills, three discs, three wagons, and some other small machinery. The bankrupt stated to one party in August, 1914, that he had made nothing at make a stake at threshing or 'go broke,' and that he had made nothing at farming, and in the winter of 1913-14 he advised another party to buy a threshing outfit, that he could make money thereby, and that he had just as well 'cut out' this farming business first as last, and that he, the bankrupt, had tried it, but there was nothing in it, and that he had quit farming.

'The bankrupt purchased, in the season of 1910, or 1911, a J. I Case...