In re Hatem
| Decision Date | 26 March 1908 |
| Citation | 161 F. 895 |
| Parties | In re HATEM. |
| Court | U.S. Court of Appeals — Fourth Circuit |
W. O Howard and J. F. Lyles, for petitioning creditors.
On the petition of creditors, B. Hatem was adjudicated a bankrupt on the 26th day of December, 1907, and January 7, 1908, fixed as the day for the first meeting of creditors. Joseph Hatem proved or filed a claim for $3,000, evidenced by three promissory notes of $1,000 each, two bearing date as of January 19, 1907, and the other October 7, 1907, and sworn to on one of the prescribed forms for the proof of an unsecured debt. The proof of this debt by Joseph Hatem was objected to on several grounds in a paper writing, not verified, signed by W. O. Howard and J. F. Lyles, attorneys for petitioning creditors. After argument the referee finds 'that the accounts of Joseph Hatem are not true, and that he is not entitled to any part of the estate of B. Hatem,' and therefore expunges same from the list of claims proved. From this ruling the bankrupt and Joseph Hatem appeal to the district judge.
The only question argued here is, 'Can an unsecured creditor object to the proof of claim by another unsecured creditor?' there being a receiver and a trustee in bankruptcy, and it not being shown the trustee has been applied to and refused to act. The general doctrine is that where there is a trustee, cestuis que trust must act through or by the trustee, and when they assume to act in propria personae they must show the trustee has, upon application duly made to him, refused to act. This is not 'new' law, but old, well-settled law. It has been so held time out of memory. Where a trustee or any creditor shall desire the examination of a claim filed against the bankrupt estate, he may apply by petition to the referee for an order for such examination. Where a trustee has been appointed, he must file the petition for re-examination of a creditor's claim and not another creditor. Loveland, p. 342, Sec. 140; In re Lewensohn, 121 F. 538, 57 C.C.A. 600.
But does this rule obtain in bankruptcy? Is there not a statutory provision to the contrary? Section 57d (Act July 1, 1898, c. 541, 30 Stat. 560 (U.S. Comp. St. 1901, p. 3443)) provides:
'Allowance of Claims.-- Claims which have been duly proved shall be allowed, upon receipt by or upon presentation to the court, unless objection to their allowance shall be made by parties in interest,' etc.
True,...
To continue reading
Request your trial
-
Dickinson v. Riley
...163 F. 155, 158, 24 L.R.A.(N.S.) 184; In re Wheeler (C.C.A.7) 165 F. 188, 189; In re Miller (D.C.Minn.) 39 F.(2d) 919, 921; In re Hatem (D.C.E.D.N.C.) 161 F. 895, 896; In re Swift et al. (D.C.Mass.) 118 F. 348, 349; Remington on Bankruptcy, vol. 8, § 3871, p. 231. A different rule would vir......
-
In re Meade Land & Development Co., Inc.
...act through or by the trustee and may only act in "propria persona" when the trustee, upon application, has refused to act. In re Hatem, 161 F. 895 (D.C.N.C.1908). The second is the fear that if every creditor was permitted to intervene and participate in matters of litigation, the courts w......
-
Rasmussen v. Gresly
...24 L. R. A. (N. S.) 184; In re Wheeler (C. C. A. 7) 165 F. 188, 189; In re Miller (D. C. Minn.) 39 F. (2d) 919, 921; In re Hatem (D. C. E. D. N. C.) 161 F. 895, 896; In re Swift et al. (D. C. Mass.) 118 F. 348, 349; Remington on Bankruptcy, vol. 8, § 3871, p. 231. A different rule would vir......
-
In re Cook
...the estate against excessive charges in such matters. In re Mexico Hardware Co. (D. C.) 197 F. 650 collecting authorities; In re Hatem (D. C.) 161 F. 895, and In re Siegel Co. (D. C.) 216 F. 943, as to position of trustee. In the rare instances in which the estate is sufficient to pay all c......