Gregg Grain Co. v. Walker Grain Co.
| Decision Date | 28 November 1922 |
| Docket Number | 3922. |
| Citation | 285 F. 156 |
| Parties | GREGG GRAIN CO. et al. v. WALKER GRAIN CO. et al. [1] |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stanley Boykin, of Fort Worth, Tex. (Capps, Cantey, Hanger & Short and H. C. ray, all of Fort Worth, Tex., on the brief), for petitioners.
P Walter Brown, Sidney L. Samuels, and Clay Cooke, all of Fort Worth, Tex. (Samuels & Brown, Armstrong & Powell, and Cooke Dedmon & Potter, all of Fort Worth, Tex., on the brief), for respondents.
Before WALKER, BRYAN, and KING, Circuit Judges.
This is a petition to superintend and revise an order, entered by the District Judge, requiring the referee in bankruptcy to hear and decide contests 'by the bankrupt and the creditors of the bankrupt, or by any party at interest,' of the claims of petitioning creditors of the bankrupt estate of the Walker Grain Company.
The claims of petitioners are based upon breaches by the bankrupt of contracts for the purchase of grain by it from petitioners. A decree adjudicating the Walker Grain Company a bankrupt was affirmed by this court in 268 F. 510.
The claims of petitioners were duly verified and filed with the referee. These claims were contested by certain parties, who claimed to be creditors. The trustee joined in the contest but asked permission to withdraw his objections at the hearing, upon the ground that he was unable to make any showing against their allowance, after a consultation with the bankrupt and other contestants, and also after an examination of testimony which had been taken upon the issues of insolvency and acts of bankruptcy. The referee overruled all the contests. Thereafter all the contestants, except the trustee, sought a review by the District Judge; but, before their petition came on to be heard, it was withdrawn by all of them, except the bankrupt and S.E. Walker. It is therefore necessary to consider only the contests filed by the bankrupt and by Walker.
Upon the former appeal we held:
'The evidence showed beyond dispute that the respondent (bankrupt) was insolvent.'
Walker contended before the referee that he had two valid claims against the estate, one in the sum of $32.25 for services performed, and another in the sum of $285.08 by assignment. The findings of fact by the referee are to the effect that Walker's individual claim accrued after bankruptcy, and that no assignment of the other claim had been made, and that Walker had received a void preference in an amount exceeding the aggregate of the two claims presented by him. Upon these findings of fact, the referee sustained objections made by the petitioning creditors to these two contests.
A motion is made to dismiss the petition upon the ground that the question for review should be presented by appeal, and not by petition to superintend and revise. The reason urged in support of the motion is that the District Court in effect allowed the claims of the petitioning creditors. We do not doubt the right of the District Judge to order a re-examination of the claims filed by the petitioning creditors. But the question of the allowance of the claims was not brought up for review before the District Court, and is...
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