In re Mitchell

• Decision Date: 18 January 1922
• Docket Number: 114-115.
• Parties: In re MITCHELL (two cases).
• Court: U.S. Court of Appeals — Second Circuit

278 F. 707

In re MITCHELL (two cases).

Nos. 114-115.

United States Court of Appeals, Second Circuit.

January 18, 1922

David Haar, of New York City, for petitioners.

Bondy &amp Schloss, of New York City (Eugene L. Bondy, of counsel), for receiver.

There is no difference between these appeals, except as to names and amounts. The facts in the Gross case are as follows: An involuntary petition was filed against Mitchell April 25 1921. A receiver was appointed, who conducted examinations (presumably under section 21a) into the acts, conduct, and property of the bankrupt. As a result thereof he filed a petition against Betty Gross, setting forth that on April 20 1921, Mitchell had realized $2,500 in cash by the sale of certain merchandise, and immediately handed the same over to Betty Gross. It was further averred that said Betty Gross still held the said cash intact 'separate and apart from other moneys' and that the money was so held 'in secret trust for the bankrupt. ' The receiver therefore prayed for an order directing said Gross to surrender said money forthwith.

Betty Gross appeared and by answer (1) denied the jurisdiction of the court, and (2) averred that said $2,500 was handed to her as 'repayment of a loan made by' her 'to the bankrupt over a year ago. ' After hearing, an order was entered granting the receiver's motion 'to the extent hereinafter indicated,' viz.:

'Further ordered that, within ten days from the date of the service of a certified copy of this order upon the respondent, Betty Gross, the said respondent turn over to deposit with Alexander Gilchrist, Jr., clerk of this court, the sum of twenty-five hundred ($2,500) dollars, and that the said Alexander Gilchrist, Jr., as clerk aforesaid, hold said moneys to await the outcome of a plenary suit to be instituted by the trustee for the recovery from the said respondent Betty Gross of the sum of twenty-five hundred ($2,500) dollars claimed to have been paid to her by the bankrupt in fraud of creditors; and it is further ordered that in the alternative the said Betty Gross may file with the clerk of this court within ten days from the service of a certified copy of this order upon her of a good and sufficient bond, to be approved by a Judge of this court, conditioned upon her paying to the trustee in bankruptcy for the said bankrupt herein to be appointed, the said sum of twenty-five hundred ($2,500) dollars in the event that in said suit brought by the trustee for the recovery thereof judgment is rendered in favor of the said trustee; and it is further ordered that the trustee in bankruptcy herein commence said suit within fifteen days after his appointment and qualification as trustee; and it is further ordered, that in the event that said suit is not so started within the said 15 days, that this order be null and void, and that the sum of $2,500 so to be deposited with the clerk of the court be returned to the said Betty Gross, or, if she chooses the alternative, that the bond be canceled and the surety thereon discharged.'

Thereupon this petition to revise was filed, based upon a record which contains nothing but the petition above referred to, the usual order to show cause, the answer above summarized, and the order complained of. None of the evidence is before us.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The question before us is irregularly presented and almost academic.

The petition to revise is in the name of, and signed and verified by, the attorney for Gross and Birenberg. While the forms and orders prescribed by the Supreme Court do not descend into the particulars of practice on petitions to revise, it is plain that such petition must be by the party aggrieved. In re Jemison, etc., Co., 112 F. 966, 50 C.C.A. 641. It would be a proper application of familiar local practice to allow the verification of a petition to revise by the attorney, he showing cause therefor in his affidavit; but there is no justification for the attorney himself and in his own name seeking review, and the reason for this is that he is not the party aggrieved.

The question is academic, or nearly so, because in the absence of any evidence we are ignorant of the facts leading to the order complained of: consequently we can only answer the inquiry whether, under any circumstances, however...