First and City Nat. Bank of Lexington, Ky., v. McCrossin

• Decision Date: 21 March 1916
• Docket Number: 2836.
• Citation: 230 F. 983
• Parties: FIRST AND CITY NAT. BANK OF LEXINGTON, KY., v. McCROSSIN. In re NEW METROPOLITAN HOTEL CO.
• Court: U.S. Court of Appeals — Fifth Circuit

230 F. 983

FIRST AND CITY NAT. BANK OF LEXINGTON, KY., v. McCROSSIN.

In re NEW METROPOLITAN HOTEL CO.

No. 2836.

United States Court of Appeals, Fifth Circuit.

March 21, 1916

On the 24th day of June, 1914, the New Metropolitan Hotel Company of Birmingham, Ala., which conducted a barroom in connection with its hotel business, was adjudged bankrupt on its own petition. The appellee, Wm. P. McCrossin, was duly appointed trustee. Appellant, the First and City National Bank of Lexington, Ky., on August 15, 1914, filed its proof of claim consisting of promissory notes, executed by the hotel company to the appellant, and amounting in the aggregate to approximately $8,000. Subsequently the trustee, McCrossin filed a motion, seeking a re-examination of the claim, and prayed that it be disallowed and expunged. The referee sustained the motion, and entered an order disallowing and expunging the claim. Upon a petition to review the order of the referee the lower court denied the prayer of the petition, and passed an order, affirming and sustaining the order of the referee and taxing the costs against the petitioner. From the order last mentioned, the bank has appealed to this court.

Pursuant to the stipulation of counsel no written pleadings were filed before the referee, nor does the record contain any reasons assigned either by the trial court or by the referee, for disallowing the claim of appellant. It, however, appears in the briefs and upon the oral argument of counsel that, to defeat the claim, the trustee relies upon sections 28 and 34 of an act of the Alabama Legislature (Acts Ala. 1911, pp 266, 268), approved April 6, 1911. These sections are in the following words:

Section 28: 'That all agreements or obligations of any person to buy or sell exclusively a product or output of beer or other malt or spirituous liquors of any particular person or corporation in any licensed place of business shall be null and void. Nor shall any person engaged in the manufacture or sale of spirituous, vinous or malt liquors be allowed to conduct a business for the retail of said liquors in his own name or in any other person's name, or to furnish money or fixtures for that purpose, and any agreement, lease or mortgage made for such purpose shall be null and void.'

Section 34: 'That any person who commits, or aids, or abets assists, or encourages another in committing any of the acts herein declared to be unlawful shall be guilty of a misdemeanor, and upon conviction must be fined not less than fifty dollars, nor more than five hundred dollars, for the first offense and shall be sentenced to hard labor for the county or imprisoned in the county jail for not less than thirty days nor more than six months, upon each succeeding conviction, unless a different punishment is herein specifically provided for the offense.' A. Latady, of Birmingham, Ala., for appellant.

John P. Tillman, L. C. Leadbeater, and Tillman, Bradley & Morrow, all of Birmingham, Ala., for appellee.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

MAX...