Brehme v. Watson, 7029.
| Decision Date | 30 October 1933 |
| Docket Number | No. 7029.,7029. |
| Citation | 67 F.2d 359 |
| Parties | BREHME v. WATSON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Courtney L. Moore and Reuben G. Hunt, both of San Francisco, Cal., for appellant.
Torregano & Stark and Ernest J. Torregano, all of San Francisco, Cal., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
Appellant, Brehme, an alleged bankrupt, brings this appeal from an order of the District Court sitting in bankruptcy.
The facts are not controverted: Appellant is the indorser of a promissory note executed by Vaca Rancho, a corporation, to Wm. L. Watson, appellee, and secured by a mortgage on the real property of said corporation. The record before us is silent as to the disposition of this note and mortgage, save and except that appellee commenced an action in the superior court of the state of California, in Solano county, against Vaca Rancho and this appellant, praying for the foreclosure of the mortgage and for a deficiency judgment against the corporation and appellant. Five days later, appellee commenced another action in said superior court, this time, however, in San Francisco, against appellant personally, seeking judgment by reason of his indorsement of said note. In the San Francisco suit appellee obtained several writs of attachment which he caused to be levied on certain corporate securities alleged to belong to appellant, and thirty days after the levy of these writs, filed an involuntary petition in bankruptcy against appellant, alleging that he had not received any manner of security for his claim against appellant, and assigning the attachments as acts of bankruptcy pursuant to subdivision 4 of section 3a of the Bankruptcy Act,1 and offering to surrender the lien of the attachments to the trustee, when appointed, for the benefit of the general creditors in the event of adjudication in bankruptcy. Appellant was never served with summons in the San Francisco suit, and, so far as the record shows, knew nothing of it until the involuntary petition in bankruptcy was instituted.
A motion to dismiss this involuntary petition was timely filed by appellant, on the principal ground that appellee, as an attaching creditor, could not act as a petitioning creditor and assign as acts of bankruptcy the nonrelease of the attachments created or issued at the request of appellee, the said petitioning creditor. This motion was denied and appellant subsequently filed his answer and amended answer to said involuntary petition, and also filed an answer in the San Francisco suit. The latter answer, among other defenses, alleged that there was another action pending in the Solano county court between the same parties and involving the same issue, and prayed for a dismissal of the San Francisco suit. A demurrer filed therein by appellee sought to strike this defense from the answer, but was overruled by that court.
Appellee, two days immediately prior to the date set for the trial in the San Francisco court to determine solely the issue of dual suits between the parties for the same cause, petitioned the bankruptcy court to restrain appellant from proceeding in either of the state court actions, both of which he had commenced against appellant, upon the sole ground that it was for the best interest of appellee, and all other creditors of appellant that said matters be passed upon by the bankruptcy court. The following day appellant filed his answer to this petition alleging the foregoing facts, and that the claim set forth in the involuntary petition in bankruptcy was the same claim alleged and set forth in the state court suits, and that in the event of an adjudication in bankruptcy said claim would not be provable against the estate of appellant, except for any excess over the security of the mortgage executed by the Vaca Rancho, or for any deficiency that might exist after the foreclosure of said mortgage. Appellant also alleged that said claim is secured, and denied that the bankruptcy court had exclusive and paramount jurisdiction. And, in this connection appellant further alleged that the state court having jurisdiction of the cause and of the parties and having acquired that jurisdiction prior to the institution of bankruptcy proceedings, has the sole and exclusive jurisdiction to determine whether said cause was properly filed and whether or not that court has jurisdiction over the subject-matter, and whether or not the writs of attachment issued therefrom were proper and legal.
The authorities are agreed that the bankruptcy laws merely give to courts of bankruptcy full power to enjoin all persons within their jurisdiction from doing any act that will interfere with or prevent its due administration, or which will cause...
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In re Snow Camp Logging Company, 14388.
...a(15), 1(9), 66(6)), but rather the propriety of such action. In support of their position, petitioners rely exclusively on Brehme v. Watson, 9 Cir., 67 F.2d 359. The applicability of that case is not clear. It certainly falls far short of being persuasive authority in this proceeding. In t......
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Murphy v. Bankers Commercial Corp.
...court clearly did not err in denying the injunction pendente lite in the absence of proof of irreparable injury. Cf. Brehme v. Watson, 9 Cir., 67 F.2d 359, 362; 1 Collier on Bankruptcy, p. 298, n. 17 (14th ed.). We agree with the district court that the trustees' remedy at law against this ......