Fred Reuping Leather Co. v. Fort Greene Nat. Bank of Brooklyn, NY, 6321.
| Decision Date | 14 February 1939 |
| Docket Number | No. 6321.,6321. |
| Citation | 102 F.2d 372 |
| Parties | FRED REUPING LEATHER CO. v. FORT GREENE NAT. BANK OF BROOKLYN, N. Y. In re HONESDALE UNION STAMP SHOE CO., Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
Ira B. Rutherford, of Honesdale, Pa., for appellant.
Louis A. Fine, of Honesdale, Pa. (S. Augustus Davis, of Scranton, Pa., and Irvin M. Lichtenstein, of Camden, N. J., of counsel), for appellee.
Before DAVIS, MARIS, and CLARK, Circuit Judges.
Fred Reuping Leather Company, a general creditor of Honesdale Union Stamp Shoe Co., Inc., a bankrupt, has appealed from the order of the District Court for the Middle District of Pennsylvania dismissing its petition to review the order of a referee in bankruptcy which refused its petition to expunge the claim of Fort Greene National Bank of Brooklyn, N. Y., another creditor of the bankrupt. The appellee bank has moved to dismiss the appeal. The motion raises the question whether a general creditor has standing to prosecute an appeal from such an order.
While the rule appears to be otherwise in the Fifth Circuit (In re Roche, 101 F. 956), the overwhelming weight of authority in the other circuits is to the effect that a general creditor of a bankrupt has no right to contest another creditor's claim or to appeal from the refusal of the court to disallow it unless upon application the trustee has refused to do so and the district court has authorized the creditor to proceed in the trustee's name. Chatfield v. O'Dwyer, 8 Cir., 101 F. 797; Foreman v. Burleigh, 1 Cir., 109 F. 313; In re Lewensohn, 2 Cir., 121 F. 538; Ohio Valley Bank Co. v. Mack, 6 Cir., 163 F. 155, 24 L.R.A.,N.S., 184; In re Patterson-MacDonald Shipbuilding Co., 9 Cir., 288 F. 546; In re Chakos, 7 Cir., 24 F.2d 482; Amick v. Mortgage Security Corporation, 8 Cir., 30 F.2d 359.
While the question has not previously been decided in this circuit, we are convinced that the majority rule which we have stated is sound and should be followed here. As is pointed out in the cases supporting the rule the trustee represents all the creditors and may therefore be relied upon to press all proper objections to the claims of those whose standing is questionable. If he defaults in his duty the court may upon application direct him in his duty or, if he be recalcitrant, remove him for disobedience, or permit a creditor to act in his name. To allow any creditor, without such leave, to institute proceedings to reject the claims of other...
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