COMMERCIAL NAT. BANK IN SHREVEPORT v. JT CONNOLLY, 12329.

• Citation: 177 F.2d 514
• Decision Date: 16 November 1949
• Docket Number: No. 12329.,12329.
• Parties: COMMERCIAL NAT. BANK IN SHREVEPORT, Appellant and Cross-Appellee, v. J. T. CONNOLLY, Receiver, Commercial National Bank of Shreveport, R. T. Moore, et al., Intervenors, Appellees and Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

177 F.2d 514 (1949)

COMMERCIAL NAT. BANK IN SHREVEPORT, Appellant and Cross-Appellee, v. J. T. CONNOLLY, Receiver, Commercial National Bank of Shreveport, R. T. Moore, et al., Intervenors, Appellees and Cross-Appellants.

No. 12329.

United States Court of Appeals Fifth Circuit.

November 16, 1949.

Sidney L. Herold, Sidney M. Cook, Shreveport, La., and E. B. Stroud, Dallas, Tex., for appellant and cross-appellee.

Monte M. Lemann, New Orleans, La., Otis W. Bullock, Marion K. Smith, Byron D. Bullock, all of Shreveport, La., S. W. Plauche, Sr., and S. W. Plauche, Jr., Lake Charles, La., for appellees and cross-appellants.

Before HUTCHESON, SIBLEY, HOLMES, McCORD, and WALLER, en banc.

PER CURIAM.

The petition of J. T. Connolly, Receiver, and the petition of R. T. Moore et al., intervenors, for rehearing in the above cause are both hereby denied.

HOLMES and McCORD, Circuit Judges (dissenting).

Someone has said that when the heavens and the earth have passed away and the universe has returned to cosmic dust, divine truth will stand unscathed amid the wreck of matter and the crash of worlds. We were reminded of this when we read the petition for rehearing and saw the spear of truth thrust into the vulnerable heart of the contention that Class B assets were not pledged to anyone but were acquired in full ownership by the new bank. With the argument in that petition fortified by the quotation from Hightower v. American National Bank, 263 U.S. 351, 44 S.Ct. 123, 126, 68 L.Ed. 334, it is apparent that the decision in the case at bar not only resembles but actually realizes the illustration therein given of a court that adjudges the nature of a mortgage deed while disregarding the defeasance clause. One qualification must be added, however, which is brought into bold relief by the alternative request that the old bank be relieved of any charges for taxes paid by the new bank on real estate that is held to belong absolutely to the new bank. Unless the majority opinion is modified on the tax item, this will become the classic case that the Supreme Court had in mind as the ne plus ultra of what ought not to be done, when it said: "To do so would be much like determining the nature and effect of a mortgage deed without considering the defeasance clause."

An equally vulnerable contention is that, by interest on assets, the parties meant services for administering assets. It is not often that several weeks after the execution of a contract, while it is actually in the process of being performed, the parties meet and agree upon what they intended by a certain paragraph therein, which paragraph years later becomes the subject of litigation; but that very thing happened in this case. On January 10, 1933, the parties,...