Bank of Commerce & Trusts of Richmond, Va. v. McArthur

• Decision Date: 27 February 1919
• Docket Number: 3289.
• Citation: 256 F. 84
• Parties: BANK OF COMMERCE & TRUSTS OF RICHMOND, VA., v. McARTHUR et al.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F. 84

BANK OF COMMERCE & TRUSTS OF RICHMOND, VA., v. McARTHUR et al.

No. 3289.

United States Court of Appeals, Fifth Circuit.

February 27, 1919

E. J L'Engle and M. H. Long, both of Jacksonville, Fla. (J Crawford Biggs, of Raleigh, N.C., on the brief), for appellant.

H. L Anderson, of Jacksonville, Fla., and H. M. Hampton, of Ocala Fla., for appellees.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

This is an appeal from a decree dismissing, on motions of the appellees Walter Ray and N. G. Wade, a bill of complaint filed against them and others by the appellant, Bank of Commerce & Trusts of Richmond, Va. The dismissed bill, which was filed September 29, 1916, disclosed the following, among other, facts:

On or before October 1, 1912, Adam McArthur, J. Sprunt Newton, and W. M. Walker, by written indorsement, guaranteed $100,000 of the bonds of the Newton-McArthur Lumber Company, a North Carolina corporation, which bonds became the property of the appellant. In an action on some of those bonds brought in September, 1913, in the United States District Court for the Eastern District of North Carolina by the appellant against Adam McArthur, Newton, and Walker, who reside in North Carolina, judgment was rendered against them in the sum of $7,082.32. In another action brought in the same court in March, 1914, by the appellant against the same parties on other bonds of the same issue, judgment was rendered on June 13, 1914, for the sum of $80,000, with interest thereon from October 1, 1913. Executions were duly issued on the two judgments. Under the execution issued on the $7,082.32 judgment, all of Adam McArthur's personal property, subject to levy, which could be found by the marshal, was sold, and the net amount of $160.12 was realized and applied on that judgment. The sum of $56.81 was realized on the execution issued on the $80,000 judgment; the net proceeds, $4.99, being applied on that judgment. Before the institution of the suits in which the two judgments mentioned were rendered, all the property of the Newton-McArthur Lumber Company had been put in the hands of a receiver. By proceedings in the receivership suit, all the property of that company, with an exception to be stated, was converted into cash, and the net amount realized, $27,500, was applied on the above-mentioned $80,000 judgment. The only other assets of that company are two claims, upon which suits have been brought, and $1,500 cash in the hands of the receiver. Not more than $7,500 can be realized in any event on the claims in suit. In a suit instituted in a North Carolina court by the appellant and other creditors of Adam McArthur, all his real estate which could be subjected to the payment of his debts was placed in the hands of a receiver. A judgment in favor of a creditor other than the appellant constitutes a first lien on that real estate. That real estate is greatly less in value than the amounts remaining unpaid on the above-mentioned judgments in favor of the appellant. Adam McArthur, J. Sprunt Newton, and W. M. Walker are named as defendants. The averments of the bill show that all three of them reside in North Carolina, and that there is no one in Florida the service of process upon whom would bind either of them. Each of them is wholly insolvent. Formerly, and while the debts on which the appellant recovered judgments in North Carolina were in existence, Adam McArthur had sundry items of property in Florida. That property was acquired from him by defendants, who live in Florida, and upon whom process in this suit has been served. It was so disposed of that Adam McArthur ceased to have any interest in it. But...