In re Ferribee
| Citation | 93 F.2d 262 |
| Decision Date | 14 December 1937 |
| Docket Number | No. 6334.,6334. |
| Parties | In re FERRIBEE. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Heber T. Dotson, of Chicago, Ill., for appellant.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
The bankrupt appeals from an order entered May 1, 1937, denying his petitions: (1) To reopen his estate in bankruptcy and refer the matter generally and specially to a referee in bankruptcy; and (2) to enter a judgment against the Boulevard Building Corporation in the amount of $17,000 nunc pro tunc as of August 3, 1927.
As grounds for the relief prayed in his first petition, filed April 9, 1937, appellant set up the facts that he had been a bankrupt since May 17, 1927. He had scheduled as his assets a claim for a 99-year lease on an apartment in a building located on South Parkway, and a claim for commissions due from the corporation owning the building, for the sale of other apartments located therein. Considerable litigation was had in the state courts involving both claims, most of which was dismissed for want of prosecution on the part of appellant. He states that the reason for such apparent abandonment of his claims lay in the fact that he had been advised by counsel that once he was declared a bankrupt, he was civilly dead, and without right or power to prosecute any "rights or assets belonging to his bankrupt estate."
After appellant's adjudication in bankruptcy, a trustee was appointed for his estate. He reported that the assets were of no value, and resigned on June 13, 1928. The bankrupt applied for his discharge but, being unable to pay the costs of the proceeding, he was never granted a discharge. Subsequently, condemnation proceedings were instituted in the District Court involving the property of the corporation against which his alleged claims arose. Appellant states that he is under the impression that he cannot press those claims in the condemnation suit unless the court reopens his bankruptcy proceeding as here prayed, in behalf of himself as well as of certain creditors whose claims were scheduled in that proceeding.
The petition for the entry of a judgment nunc pro tunc as of August 3, 1927, against the building corporation in the amount of $17,000, is based on a finding of a special master in his report filed September 9, 1927, in the bankruptcy proceeding, to the effect that "Counsel for the Receiver of the building corporation in the State Court admitted before me that there was due, substantially, $17,000 from the corporation to Ferribee."
The Court in its order of May 1, 1937, from which this appeal is being prosecuted, held that the purported admission of counsel for the receiver of the corporation could not be the basis for the entry of the nunc pro tunc order for the reason that neither the receiver nor his counsel was an officer or agent of the corporation, and his admission was ineffective to bind the corporation, or support the bankrupt's motion for summary judgment, and that the Court had no jurisdiction of the corporation for the purpose of entering the judgment. The Court then proceeded to incorporate in his order the facts regarding appellant's participation in the condemnation proceedings, taking judicial notice of them because of the fact that the case was then pending before him. He states that appellant, on March 3, 1937, filed his petition in the cause in his individual capacity, asserting his claim for the $17,000 together with his claim for the 99-year lease, praying that the two claims be adjudged to be a prior lien on the real estate. His petition and the answers of the United States, and of the receivers of the bank interested in the real estate, were referred to a special master who took evidence thereon and reported on March 11, 1937, that appellant had sought to enforce his two claims in four separate proceedings in the state and municipal courts, in all of which decrees had been entered either dismissing them for want of prosecution or finding against him on the merits. Upon hearing by the Court of...
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