Hendrie & Bolthoff Mfg. & Supply Co. v. Beck

• Citation: 72 Colo. 387,211 P. 365
• Decision Date: 04 December 1922
• Docket Number: 10494.
• Parties: HENDRIE & BOLTHOFF MFG. & SUPPLY CO. v. BECK.
• Court: Colorado Supreme Court

211 P. 365

72 Colo. 387

HENDRIE & BOLTHOFF MFG. & SUPPLY CO. v. BECK.

No. 10494.

Supreme Court of Colorado

December 4, 1922

Department 1.

Error to District Court, Adams County; S.W. Johnson, Judge.

Petition by George W. Beck, receiver of the National Beet Harvester Company, against the Hendrie & Bolthoff Manufacturing &amp Supply Company and other creditors, for surrender of collateral. There was an order in accordance with the petition, and the named creditor brings error and applies for supersedeas.

Reversed and remanded.

William W. Grant, Jr., of Denver, for plaintiff in error.

Harry S. Class, of Brighton, for defendant in error.

ALLEN J.

This cause is before us on an application for a supersedeas and was brought here on a writ of error to review an order, in a receivership case, compelling certain creditors of the receivership estate to surrender to the receiver the notes and bonds held as collateral security by each of such creditors respectively.

The record before us begins with a petition in a case entitled D L. Daron, Plaintiff, v. National Beet Harvester Company, Defendant. This petition was filed by the receiver of the defendant. It alleges, in substance, that the Hendrie & Bolthoff Manufacturing & Supply Company and other claim to be creditors of the defendant and hold certain notes and bonds as collateral security; that prior to the appointment of the receiver the defendant company issued certain bonds wherein and whereby the property of the defendant is pledged as security for the payment of the bonds; that some of the bonds were delivered and hypothecated for certain debts incurred prior to the receivership; and that the creditor above named, and others, are holding a part of such bonds as collateral security. It is further alleged that, if the collateral securities are permitted to remain in the hands of the present holders, a great part of the securities will be lost to the estate, and that it is necessary that immediate steps be taken by the receiver to realize on and collect the same. The petition prays that the creditors be required to turn over to the receiver such notes and bonds.

The Hendrie & Bolthoff Company, above named, filed an answer, in response to a rule to show cause, in which it is admitted 'that it holds certain collateral for an account due to it from the defendant,' and it is alleged, in substance that the account amounts to approximately $21,000; that the collateral consists of 'merchandise and stock notes' aggregating $9,725.98, a note for $10.000 indorsed by directors of defendant, and $10,000 in bonds of the defendant; that none of the collateral will be lost by remaining in its hands; that it is being collected as it comes due and is being creditied on defendant's account; and that the receiver can take no more effective and immediate steps for collection than can the answering creditor, the holder of the collateral.

The receiver filed a demurrer to the answer. The demurrer was sustained. Thereupon, and without the taking of any evidence, the court made the order described at the beginning of this opinion, and the Hendrie & Bolthoff Manufacturing & Supply Company has sued out this writ of error.

The sole question presented is whether or not the court erred in ordering the creditor, the plaintiff in error, to deliver to the receiver the possession of collateral security, in the form of notes and bonds, which, it is admitted, the creditor received prior to the receivership.

The facts to which the opinion and decision in this case will be made applicable are those alleged in the answer, the allegations of which are admitted by the demurrer. None of the collateral will be lost to the estate by remaining in the hands of the creditor. The receiver could not realize on it any more effectively than the creditor. There is no...