In re Newton

• Decision Date: 25 February 1901
• Docket Number: 19.
• Citation: 107 F. 429
• Parties: In re NEWTON.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F. 429

In re NEWTON.

No. 19.

United States Court of Appeals, Eighth Circuit.

February 25, 1901

Francis A. Leach, George W. Day, and T. C. Sparks, for petitioner.

James W. Garner, for respondent.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District judge.

ADAMS District Judge.

This is an original proceeding instituted in this court to revise the action of the district court of the United States for the Western division of the Western district of Missouri in refusing to appoint a trustee in bankruptcy to administer certain assets alleged to have been discovered by the petitioner, Arthur G. Newton, after the first trustee had rendered his final accounts and had been discharged. The facts of the case, so far as it is now necessary to state them, are as follows: On November 9, 1899, one William E Evans was on his own petition, adjudicated a bankrupt. On December 2, 1899, after due notice, the first meeting of creditors was held, and John R. Walker duly appointed trustee of the bankrupt's estate. On December 8, 1899, the trustee submitted his final report, showing no assets. On the same day the report was approved, and the trustee discharged. On January 8, 1900, after due notice to creditors, the bankrupt's application for a discharge from his debts was granted by the court. On February 23 1900, the petitioner, Arthur G. Newton, filed his proof of claim against the bankrupt's estate in the sum of $794 and on March 28, 1900, filed a petition in the district court setting forth the foregoing facts, and in addition thereto as follows:

'That your petitioner is informed and believes, and so alleges, that said William E. Evans has money or property which he did not include in his schedule of assets, and which may in proper proceedings be made available in the payment of his debts; that the money or property aforesaid is now held by -- -- -- - Evans, the wife of said William E. Evans, in trust to the sole use, benefit, and behoof of the said William E. Evans, and was so held at the time of filing of said petition in bankruptcy, as aforesaid, in fraud of the creditors of the said William E. Evans. Wherefore your petitioner prays that an order be made appointing some suitable person trustee herein, to the end that all assets of said bankrupt may be administered and dealt with according to the law in such cases made and provided.

'(Signed)

Leach, Day & Sparks, Attorneys for Petitioner.'

This petition was not verified or otherwise supported by affidavits, but was submitted on its own showing, and on July 14, 1900, was overruled by the court.

The bankruptcy act, approved July 1, 1898, contemplates that an application for a discharge may be filed and acted upon before the estate is fully administered. Section 14 of the act provides that such application may be made within one month after the adjudication. Section 57, subd. n, gives creditors one year after the adjudication within which to file their proofs of claim. The act also contemplates the reopening of an estate after it has once been closed. Section 2, subd. 8, provides that courts of bankruptcy may 'close by approving the final accounts and discharging the trustees, and Section 11, subd. d, gives a trustee two years after an estate has been closed to institute suit for the recovery of assets. These and other provisions of the act which might be referred to plainly show that notwithstanding a bankrupt may have been discharged from his debts, and notwithstanding a trustee may have filed his final accounts and been discharged from his trust, and the estate be thereby closed, it may nevertheless be opened again if unadministered assets be discovered.

While it is the duty of the court and the clear policy of...