In re Taft

• Decision Date: 01 December 1904
• Docket Number: 1,322.
• Citation: 133 F. 511
• Parties: In re TAFT.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F. 511

In re TAFT.

No. 1,322.

United States Court of Appeals, Sixth Circuit.

December 1, 1904

Arnold Green, for petitioners.

Smith &amp Taft, for defendant.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This is a petition to review an order made by the District Judge requiring the petitioner, as receiver in bankruptcy for the estate of W. F. Eirick, a bankrupt, to release all claim to a sum of money on deposit in a Cleveland bank to the credit of one W. H. Boyd. This fund was claimed by the receiver as a part of the general estate of the bankrupt. The question arose under a petition filed in the bankrupt proceedings by Sutliff & Gott, partners. This petition is made part of the petition filed in this court. Its substantial averments are that petitioners, who are dealers in live stock, had shipped to the bankrupt, W. F. Eirick, who was doing business in Cleveland, Ohio, as a live stock commission merchant, a car load of stock, to be sold by him as agent, and to remit proceeds of sale after deducting charges and commission. It is then averred that on the next day after the receipt of this consignment, being September 18, 1903, this stock was sold to three different purchasers; that one lot was sold to the Lake Erie Provision Company for $839.79, and that on the same day or the next this lot was paid for by the check of the purchaser, payable to the order of Eirick, for $1,706.04 being the price of petitioners' stock, included with the price of stock owned by other consignors, sold also by said Eirick; that another sale was made to a firm styled Swope Hughes, Walz & Benstead for $98.53; and that this was paid for by a similar check, which included the price of petitioners' stock with the price of stock owned by another party. A third lot was also sold to still another purchaser, and paid for by a check for $67.42. It is averred that Eirick was insolvent when he received the stock so consigned to him, and knew it, but that petitioners did not know it. It is further averred that on the day the checks for these sales came to Eirick's hands he had determined to become a voluntary bankrupt, and that he did on September 21st file the petition upon which he was declared a bankrupt that before filing this petition 'he delivered said checks to one Wm. H. Boyd to be held by him in trust for the parties whose property he had sold, and for whom he had received said checks in payment thereof. ' It is then alleged that said Boyd deposited said checks to his individual credit with the Cleveland Trust Company, and that same had been collected by it. Petitioners on the 19th of September, hearing of the insolvent condition of said Eirick, demanded of both Eirick and Boyd the proceeds of said sales, less charges and expenses, but payment was refused. Petitioners claim the right to follow the proceeds arising from the sales of their stock, and therefore ask that the receiver be required to disclaim any interest in such proceeds. The receiver's answer admitted the receipt of the stock of Sutliff & Gott by Eirick, who was an agent for the sale of live stock, but denies knowledge of the terms upon which said stock was consigned to him; admits that checks were given to Eirick for stock sold by him as alleged, but denies substantially every other allegation, and claims the proceeds of such sales as part of his general estate.

Upon the pleading and the evidence, the referee ordered the receiver to release all claim to $980.01 of the fund deposited by W. H. Boyd with the Cleveland Trust Company as attorney for the bankrupt, and that Boyd should pay over said sum to Sutliff & Gott. Upon a review of this decision by the District Judge, it was adjudged 'that all the actions findings, rulings, decisions, and orders of said referee in the premises be, and the same are hereby, in all things approved and affirmed,' etc., 'and stand as the order of the court. ' Inasmuch as our jurisdiction to review the orders of the bankrupt courts, under section 24b of the bankrupt act of July 1, 1898, c. 541, 30 Stat. 553 (U.S.Comp.St. 1901, p. 3432), does not extend to any review of a finding or...