Yellow Motor Co. v. Davis

• Decision Date: 03 July 1928
• Docket Number: No. 351.,351.
• Citation: 27 F.2d 597
• Parties: YELLOW MOTOR CO. OF ST. LOUIS v. DAVIS, District Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

27 F.2d 597 (1928)

YELLOW MOTOR CO. OF ST. LOUIS v. DAVIS, District Judge.

No. 351.

Circuit Court of Appeals, Eighth Circuit

July 3, 1928.

Chase Morsey, of St. Louis, Mo., for petitioner.

Before STONE, Circuit Judge, and JOHN B. SANBORN, District Judge.

PER CURIAM.

This is a petition for a writ of prohibition to prevent Judge Charles B. Davis, of the Eastern District of Missouri, from carrying out and enforcing an order, entered by him, which required Fred M. Williams and others to submit to an examination in the bankruptcy matter No. 5242, In re Yellow Motor Company of St. Louis.

May 8th an involuntary petition in bankruptcy was filed against the above company. May 22d that company filed an answer, among other things, denying that the petitioners were creditors or that it had committed the act of bankruptcy charged. May 24th the petitioning creditors filed an application for examination of the officers of the alleged bankrupt and of others, under the provisions of section 21a of the Bankruptcy Act, 11 USCA § 44 (a). An order to that effect was entered upon that day. Thereafter a motion to vacate said order was permitted to be filed and, after hearing, was denied on June 29, 1928.

The contention presented here is that Judge Davis had no jurisdiction to order or permit this examination, because section 21a allows such examination only when the estate of the alleged bankrupt is in process of administration under the Bankruptcy Act and that, as nothing had occurred in this matter except the filing of the involuntary petition and the challenging answer thereto, that the estate was not in process of administration.

We do not stop to examine whether the writ of prohibition is a proper remedy under the circumstances here existing (Ex parte United States, 263 U. S. 389, 44 S. Ct. 130, 68 L. Ed. 351), but we think Judge Davis clearly had jurisdiction and power to make the order here in question. This result we think is ruled by Cameron v. United States, 231 U. S. 710, 717, 34 S. Ct. 244, 58 L. Ed. 448; In re Youroveta H. & F. T. Co., 288 F. 507, 513 (C. C. A. Second Circuit); In re Mitchell, 278 F. 707, 709 (C. C. A. Second Circuit); In re Standard Aero Co., 270 F. 783, 784 (C. C. A. Third Circuit); Rawlins v. Halls-Epps Clothing Co., 217 F. 884, 885 (C. C. A. Fifth Circuit); Broward County Lumber Co. v. Burgess, 17 F.(2d) 1010 (C. C. A. Fifth Circuit); In re Stell, 269 F. 1008 (D. C. E. D. Texas); In re Henderson, 266 F. 254 (D. C. Mass.). The...