In re Judith Gap Commercial Co.
| Citation | 298 F. 89 |
| Decision Date | 07 April 1924 |
| Docket Number | 4115. |
| Parties | In re JUDITH GAP COMMERCIAL CO. v. BOGERT. BILLINGS CREDIT MEN'S ASS'N |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sterling M. Wood, of Billings, Mont., for petitioner.
Edmund A. Bogert, of Lewiston, Mont., for respondent.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
On March 13, 1922, the Judith Gap Commercial Company, a corporation, was adjudicated a bankrupt by the court below. At the first meeting of creditors, thereafter held, before the referee, the petitioner was elected trustee of the bankrupt estate, and duly qualified and entered upon the discharge of its duties, as such. On February 7, 1923, the bankruptcy court made an order directing the trustee to show cause 'why (1) its election as trustee should not be revoked; (2) it should not be removed from its office of trustee. ' On February 24, 1923, the show cause order was vacated after a hearing. On August 11, 1923, in the matter of the settlement of the accounts of the assignees of the bankrupt, under an assignment made prior to adjudication, the bankruptcy court, without notice or hearing, made a further order annulling the previous order of February 24, vacating the show cause order of February 7, and removing the trustee from office. The latter order is now before us for review and the jurisdiction of the court below to make the order is the only question with which we are concerned.
The order is sought to be upheld upon three grounds: First, under the power vested in the referee or judge to disapprove the appointment of trustees by the creditors; second, under the power vested in the court to remove trustees; and, third under the inherent power vested in the bankruptcy court, as a court of equity.
General Order XIII provides:
'The appointment of a trustee by the creditors shall be subject to be approved or disapproved by the referee or by the judge; and he shall be removable by the judge only.'
General Order XVI provides:
'It shall be the duty of the referee, immediately upon the appointment and approval of the trustee, to notify him in person or by mail of his appointment; and the notice shall require the trustee forthwith to notify the referee of his acceptance or rejection of the trust, and shall contain a statement of the penal sum of the trustee's bond.'
Section 2 of the Bankruptcy Act (Comp. St. Sec. 9586) provides that courts of bankruptcy are vested with jurisdiction:
'(17) Pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, appoint trustees, and upon complaints of creditors, remove trustees for cause upon hearings and after notices to them.'
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In re Baroni
...United States v. Union Surety & Guar. Co., 118 F. 482 (S.D.N.Y. 1902) ; In Judith Gap Comm'l, 291 F. 792 (D. Mont. 1923) rev'd 298 F. 89 (9th Cir. 1924). No courts interpreting Bankruptcy Code section 324 have relied on these authorities.26 Neither the Debtor nor Antognini appealed from the......
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Homer Arth Well No. 1, In re
...Furriers, Inc. v. Bradley, 146 F.2d 757 (6th Cir. 1945); In re F.P. Newport Corp., 93 F.2d 630 (9th Cir. 1937); In re Judith Gap Commercial Co., 298 F. 89 (9th Cir. 1924); In re Flexible Conveyor Co., 156 F.Supp. 164 (N.D.Ohio We turn to the merits of appellant's contentions. Appellant Enne......
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In re Austin Resort & Land Co.
...Woodman on Trustees in Bankruptcy, § 554." In re Judith Gap Commercial Co. (C. C. A.) 5 F.(2d) 307, 308. See, also, In re Judith Gap Commercial Co. (C. C. A.) 298 F. 89; State of Alabama v. Montevallo Mining Co. (D. C.) 278 F. The orders of the referee will be approved and confirmed. ...
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In re Lehman
...burden of litigation, and on his complaint, have the courts jurisdiction and power to remove unfaithful trustees. See In re Judith Gap Commercial Co. (C. C. A.) 298 F. 89; Id. (C. C. A.) 5 F.(2d) 307. It is worthy of note that the first of the appellate tribunal's opinions proceeds upon the......