In re Snyder
| Decision Date | 30 March 1925 |
| Docket Number | No. 4379.,4379. |
| Citation | 4 F.2d 627 |
| Parties | In re SNYDER. McCOLGAN v. CLARK. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Keyes & Erskine, of San Francisco, Cal., for petitioner.
H. W. Glensor, Ernest Clewe, Melville E. Van Dine, and E. J. Talbott, all of San Francisco, Cal., for respondent.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
November 16, 1917, one Snyder was adjudicated a voluntary bankrupt. December 1, 1917, a trustee of the estate was elected and appointed. January 15, 1918, the trustee filed his report, showing no assets, other than $100 of exempt property, and on the same day the report of the trustee was approved, the trustee discharged, and the estate closed. February 2, 1918, an order of discharge was entered. October 3, 1923, the estate was reopened on ex parte application of one claiming to be a creditor of the bankrupt. The petition to reopen alleged:
"That the estate of said bankrupt has not been fully administered, and in this behalf your petitioner alleges: That since the closing of said estate and the discharge of said trustee your petitioner has learned that said bankrupt had at the time he filed herein his said petition in bankruptcy, and ever since has had and owned, an interest in certain real property situated in the city of Los Angeles, county of Los Angeles, state of California, of the value of over fifty thousand ($50,000.00) dollars, which property has never been scheduled or administered on in said estate, and which said property should have been scheduled as an asset of said bankrupt; that your petitioner has just discovered the existence of said assets, and is unable to state why said assets of said bankrupt were never scheduled; that your petitioner's claim remains and is wholly unpaid, unsatisfied, and undischarged, and can be fully paid if said estate of said bankrupt is reopened and said assets administered on."
October 15, 1923, the petitioner, McColgan, moved the court to vacate and set aside the order reopening the estate. The petition to vacate was supported by an affidavit setting forth that the petitioner is the owner and seized in fee simple absolute of a vested remainder in fee in the property referred to in the petition to reopen; that the bankrupt has no right, title, or interest therein; that the petition to reopen was not filed within the time limited by law, and other matters not deemed material here. The petition to vacate was heard on affidavits and denied, and the case has been brought here by petition to review. The petitioner has adopted the proper practice, because the ex parte order was not subject to review in this court by petition for review or otherwise. "Although it is sometimes otherwise under a statute, the general rule is that no appeal lies from an ex parte judgment or order, the proper remedy being to apply to the court to have such judgment or order set aside, and then, if the application is denied, to take an appeal from the denial." 3 C. J. 608.
The respondent has interposed a motion to dismiss, on the ground that the petitioner has no interest in the proceeding to reopen the estate. The question thus...
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In re Menk
...in the underlying dispute will be available in the ensuing adversary proceeding. Fondiller, 707 F.2d at 443; McColgan v. Clark (In re Snyder), 4 F.2d 627, 628 (9th Cir.1925); Abbott, 183 B.R. at 200; accord, Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737 (3d Cir.1995); In re El San Juan......
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Hull v. Powell
... ... 1932). See also Rogers v. Bank of America Nat. Trust & Savings Ass'n, 142 F.2d 128 (9th Cir. 1944). This Court has held that an adverse claimant to the bankrupt's property has no interest such as to permit him to appeal from an order reopening the estate. In re Snyder, 4 F.2d 627, 628 (9th Cir. 1925) ... 6 We have suggested that if satisfied of the existence of unadministered assets the bankruptcy court might reopen an estate sua sponte, whatever the source of the information. Schofield v. Moriyama, 24 F. 2d 473 (9th Cir. 1928) ... ...
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In re Zimmer, 27037-Y.
... ... A petition for reopening is not governed by any formal procedure, and it may be made ex parte. But before the objecting creditors are bound by its terms, it must appear that they had notice of it and failed to have it set aside. An ex parte order of this character is not reviewable. In re Snyder, 9 Cir., 1925, 4 F.2d 627; Schofield v. Moriyama, 9 Cir., 1928, 24 F.2d 473; Sterling National Bank & Trust Co. v. Boyajian, 2 Cir., 1942, 127 F.2d 713; Doyle v. Ponsford, 8 Cir., 1943, 136 F.2d 401 ... The record does not show that, after securing the order, the bankrupt gave ... ...
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Westlb AG v. Kelley
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