ASSOCIATED ELEC. SUP. CO. OF OMAHA v. CBS ELEC. S. CORP.
| Decision Date | 13 April 1961 |
| Docket Number | No. 16592.,16592. |
| Citation | 288 F.2d 683 |
| Parties | ASSOCIATED ELECTRONIC SUPPLY CO. OF OMAHA, Alleged Bankrupt, Appellant, v. C. B. S. ELECTRONIC SALES CORPORATION, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Donald P. Lay, Omaha, Neb., for appellant, Kenneth Arnold, Kansas City, Mo., on the brief.
Fremont Meyers, Omaha, Neb., for appellee.
Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.
The C. B. S. Electronic Sales Corporation, of Danvers, Massachusetts, on April 11, 1960, filed an involuntary petition in bankruptcy against Associated Electronic Supply Co., of Omaha, (hereafter referred to as "Associated" or "appellant") in the United States District Court for the District of Nebraska. The petitioner alleged that the creditors of Associated were less than twelve in number; that it owed debts in excess of $1,000; that the petitioner is a creditor having provable claims against Associated totaling $69,311.22; and that within four months next preceding the filing of the petition, Associated committed acts of bankrupcty by making preferential transfers of property while insolvent, and admitted its inability to pay its debts as they matured.
In its answer to the petition, Associated denied generally the allegations of the petition; specifically denied that its creditors were less than twelve in number (a sworn list of creditors was attached); and asserted setoffs which, if established, would negative the claim of the petitioner that it was a creditor. In addition, Associated in its answer, after alleging diversity of citizenship and that $10,000 or more was in controversy, set up five counterclaims against the petitioner for damages, asking for an affirmative judgment against the petitioner for breach of contract, fraudulent misrepresentations, and violation of the antitrust laws of the United States. The aggregate of the damages for which judgment against the petitioner was asked under the counterclaims was $810,000. In answer to the counterclaims, the petitioner denied the allegations of each of them. In a reply to the answer of Associated, the petitioner stated that the information it had prior to April 11, 1960, indicated that Associated had less than twelve creditors; that the petition was filed under Section 59, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 95, sub. b in good faith, but that petitioner had since learned that its petition could not qualify under that section because of the existence of more than twelve creditors of Associated.
Associated filed a motion for a summary judgment on the ground that the court had no jurisdiction, since, under Section 59, sub. b of the Bankruptcy Act, a single creditor was not qualified to file an involuntary petition if the alleged bankrupt had twelve or more creditors. At the hearing on the motion for a summary judgment dismissing the petition, the petitioner orally moved for a dismissal of the counterclaims asserted against it. The District Judge granted both motions on the ground of lack of jurisdiction. He dismissed the involuntary petition and also dismissed the counterclaims of Associated.
Associated has appealed from the dismissal of its counterclaims. It contends that it had the right to file the counterclaims in the bankruptcy proceeding and to have them adjudicated notwithstanding the dismissal of the involuntary petition and the fact that the bankruptcy court was without jurisdiction to entertain it.
The dismissal of the involuntary petition, we think, left the court of bankruptcy with nothing upon which its...
To continue reading
Request your trial
-
In re SI Acquisition, Inc., Bankruptcy No. 1-85-00421
...the debtor or its property, or matters in which the trustee asserts an interest. See, e.g., Assoc. Electronic Supply Co. of Omaha v. C.B.S. Electronic Sales Corp., 288 F.2d 683, 684 (8th Cir.1961); see also Central States Corp. v. Luther, 215 F.2d 38 (10th Cir.1954); In re Burton Coal Co., ......
-
In re Bichel Optical Laboratories, Inc.
...for Shuron's alleged violation of the antitrust laws. This motion was denied on the basis of Associated Electronic Supply Co. of Omaha v. C.B.S. Electronic Sales Corp., 288 F.2d 683 (8th Cir. 1961), which states that a counterclaim may not be asserted as a basis for the recovery of a judgme......
-
Georgia Jewelers, Inc. v. Bulova Watch Co.
...have a utility in the bankruptcy scheme, it is, of course, permissible. This includes as Associated Electronic Supply Co. of Omaha v. C. B. S. Electronic Sales Corp., 8 Cir., 1961, 288 F.2d 683, points out, counterclaims to reduce either the dollar amount of the claims, or the number of cre......
-
In re Dr. C. Huff Co., Inc.
...Company of Guthrie Oklahoma v. Sand Springs State Bank, 528 F.2d 350 (10th Cir.1976); Associated Electrical Supply Co. of Omaha v. C.B.S. Electronic Sales Corporation, 288 F.2d 683 (8th Cir.1961); Central States Corp. v. Luther, 215 F.2d 38 (10th Cir.1954); In re Burton Coal Co., 126 F.2d 4......
-
11 APPENDIX U.S.C. § 1011 Responsive Pleading Or Motion In Involuntary Cases
...v. Bulova Watch Co., 302 F.2d 362, 369-70 (5th Cir. 1962); Associated Electronic Supply Co. of Omaha v. C.B.S. Electronic Sales Corp., 288 F.2d 683, 684-85 (8th Cir. 1961). The subdivision follows Harris v. Capehart-Farnsworth Corp., 225 F.2d 268 (8th Cir. 1955), in permitting the debtor to......