In re Thomlinson Co.

• Decision Date: 13 May 1907
• Docket Number: 77.
• Citation: 154 F. 834
• Parties: In re THOMLINSON CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

154 F. 834

In re THOMLINSON CO. et al.

No. 77.

United States Court of Appeals, Eighth Circuit.

May 13, 1907

Edward A. Haid (R. N. McConnell, on the brief), for petitioners.

Fred S Caldwell, for respondent.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This is an original petition, filed October 1, 1906, by the bankrupt to revise in matter of law certain proceedings taken by a bankruptcy court in the territory of Oklahoma in the matter of Thomlinson Company, bankrupts. That court on May 26, 1905 denied the bankrupts' motion to quash service of the subpoena, and on May 12, 1906, ruled that a certain instrument executed by the bankrupts was a general assignment for the benefit of creditors, within the meaning of section 3, subd. 4 of the bankruptcy act of 1898, as amended by the act of February 5, 1903, and thereupon made the order of adjudication. To revise these two rulings, deemed by the petitioners to be erroneous, the present proceeding was instituted.

1. The petition to revise was filed more than 16 months after the order was made denying the motion to quash. An order can be challenged by an original petition in this court only when filed within 6 months after it was made. In re Holmes, 73 C.C.A. 491, 142 F. 391; Act March 3, 1891, c 517, Sec. 11, 26 Stat. 829 (U.S. Comp. St. 1901, p. 552). We therefore cannot consider the merits of the first question submitted to us.

2. The instrument claimed not to be a general assignment is as follows 'Bill of Sale.

'Oklahoma City, Okla., March 25, '05.

'Whereas, the undersigned is indebted to various parties whose claims are now due and payable, and that the undersigned is unable to pay the same in the regular and ordinary course of business, we hereby sell and set over to R. N. McConnell, Oklahoma City, Oklahoma, in trust all of our general stock of merchandise situated at No. 6 West Grand Avenue, said city, with all our book accounts and matters receivable, amounting to about $2,397.14, conditioned that said R. N. McConnell will according to his judgment dispose and sell all of said stock of goods at retail or public sale, and collect all of said accounts, and with the proceeds pay pro rata all of our creditors, a list of which, with their address and respective amounts due, is hereto attached. That said proceeds as fast as realized by said trustee is to be paid over whenever there is sufficient funds to pay 10 per cent. dividend after having first paid whatever necessary expense there may have been incurred under said trust by way of replenishing said stock and conducting said business in the usual retail way. Immediate possession is hereby given to said R. N. McConnell on this day, and he is hereby directed to proceed and dispose of all of said assets, and pay all of said indebtedness so far as the assets will pay, and any surplus, if there be any, returned to the undersigned on demand.

(Signed) Thomlinson Company,

'Per A. Thomlinson.

'Witness: L. H. Carr.

'I accept the above and foregoing trust.

(Signed) R. N. McConnell, Trustee.'

McConnell took possession of the property conveyed, and proceeded to execute the trust imposed upon him. In our opinion the instrument in question was a general assignment for the benefit of creditors within the true meaning of the bankruptcy act, and was an act of bankruptcy warranting the adjudication. The 'general assignment' there contemplated is to be taken in its generic sense, and embraces any conveyance at common law or by s...