93 F.Supp. 604 (S.D.Iowa 1950), 1-10, In re Zenith Air Conditioning Corp.

Docket Nº:1-10.
Citation:93 F.Supp. 604
Case Date:October 26, 1950
Court:United States District Courts, 8th Circuit

Page 604

93 F.Supp. 604 (S.D.Iowa 1950)


No. 1-10.

United States District Court, S.D. Iowa

Oct. 26, 1950

Page 605

B. J. Powers, Des Moines, Iowa, for claimant Des Moines Bank & Trust co.

Robert E. Dreher, of Brunk & Janss, Des Moines, Iowa, for trustee.

SWITZER, District Judge.

Des Moines Bank & Trust Company, holder of a chattel mortgage against a portable ice manufacturing machine, executed by the bankrupt, filed an application herein on Aug. 25, 1950, for an order to require the Trustee to turn over to it certain equipment and items, to wit: 35 ice cans, each 300 pound capacity; 35 aerator tubes; 1 thawing needle; 1 chain fall or hoist; 1 deironizer; which it claims were integral parts of the said ice manufacturing machine covered by its mortgage. The Trustee answered by alleging that the bankrupt had accepted possession of one five-ton Zenith ice manufacturing machine No. 2001, that the bank's chattel mortgage which would indicate to any purchaser or to the Trustee that a lien did exist upon this specific personal property. Further, the Trustee asserts that the bank having failed to offer evidence concerning its claim to the items above mentioned in a former hearing to test the validity of the as it related to machine No. 2001, is res adjudicata of the present issue and a waiver of its rights now to claim additional items than those which were contested in the former hearing.

The material facts in this controversy are:

On Aug. 3, 1949, the Des Moines Bank & Trust Company loaned the bankrupt $10,000, and the bank obtained therefor the promissory note and chattel mortgage of the bankrupt in said amount. The chattel mortgage described the security for the loan as follows: 'A manufacturing machine No. 2001, known as 5 ton model, 25 feet Long 8 feet 6 inches Wide, 6 feet 6 inches High. Capacity 5 tons, Standard 300 lb. Ice Cakes. Freon refrigerant. 10 H.P. Water Cooled Compressor, Automatic Controls, approximate shipping weight- 12 tons. Retail Price, $12,730.00, and known as Zenith Movable Ice Plant Machine, now located and situated in Des Moines 65 West University Ave., In the County of Polk, State of Iowa', which mortgage was duly filed for record.

On Nov. 4, 1949, an adjudication of bankruptcy was entered herein.

On Dec. 24, 1949, the Trustee filed a petition, which was later amended, for a show cause order against the Des Moines Bank & Trust Company, seeking to require it to show why the said chattel mortgage should not be declared null and void on the ground that as the construction of the ice manufacturing machine No. 2001 had barely commenced on Aug. 3, 1949, the security for the loan was not then in existence and could not be specifically identified.

This application was heard by Referee George A. Heisey of Minneapolis, Minn., assigned to this District. He found...

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