In re Thompson

• Decision Date: 03 May 1920
• Docket Number: 3433.
• Citation: 264 F. 913
• Parties: In re THOMPSON. v. MACOMBER. SIMPSON
• Court: U.S. Court of Appeals — Ninth Circuit

264 F. 913

In re THOMPSON.

SIMPSON v. MACOMBER.

No. 3433.

United States Court of Appeals, Ninth Circuit.

May 3, 1920

W. W Keyes, of Tacoma, Wash., for appellant.

Leopold M. Stern, of Seattle, Wash., for appellee.

Before GILBERT and HUNT, Circuit WOLVERTON, District Judge.

WOLVERTON District Judge.

The present controversy arises upon two motions filed in this court by the appellee, one to dismiss the appeal, and the other to dismiss the petition for review. The ground upon which the motion to dismiss the appeal is based is that it was not sued out within the time limited by law, and that of the other motion is that the proper remedy of the petitioner is by appeal, and not by petition to revise. The record is in some confusion, and the effort will be to get as nearly as possible a chronological arrangement of the data, as well as a statement of the matters that seem to be controlling whereby to solve the questions presented for decision.

L. H Macomber, being a receiver of the Peter Thompson Company, a corporation, appointed by the superior court of the state of Washington, presented to the trustee in bankruptcy for his allowance a claim in the sum of $8,500, based upon the judgment of such superior court, and arising from the assessment of certain capital stock which the bankrupt held in the Thompson Company. The trustee, on April 5, 1918, filed with the referee in bankruptcy objections to the allowance of the claim, on grounds: (1) That the subscription of Peter Thompson to the capital stock of the Peter Thompson Company had been fully met and discharged; (2) that the creditors of the corporation were estopped by their conduct from asserting the claim; and (3) that the claim was not allowable as matter of law. The referee sustained the objections, treating them as a demurrer. The matter was thereupon certified to the District Court for review; the referee reciting that there were two questions involved, namely:

'Whether or not the claim is based upon a contingency, and is not a liability against the estate in the hands of the trustee for that reason; and, second, whether or not the trustee is liable * * * when he has never accepted the stock, but has disclaimed it as burdensome.'

On February 6, 1919, the District Court reversed the referee's order, and referred the matter back for further proceedings. On February 27th further objections to the claim were filed with the referee, attacking the validity of the judgment in the state court upon which the claim is based, and assigning other reasons why it should be disallowed. A motion was interposed by the claimant to strike the objection, resulting in an order of the trustee denying the motion. The order was entered May 13, 1919. The matter was again informally certified to the District Court. The referee then certified that--

'The question presented on this review is whether or not the trustee has any legal right to file the objections filed by him on February 27th last, or to any pleading after the determination of the said demurrer, and whether or not this court is bound by the act of the superior court in fixing the amount due from Thompson on his stock subscription.'

The cause coming on for hearing before the District Court, the motion to strike the trustee's objection as a whole was denied, but was sustained as to each and every of the other grounds of the objections, and the cause was again referred back to the referee for further proceeding. This order bears date July 14, 1919. Thereafter the referee, having again considered the matter, made and entered, on August 8, 1919, the following findings and order:

'I find that the claim of the said L. H. Macomber as receiver is in proper form and is entitled to be filed as a claim in said estate. I further find, however, that the creditors represented by the said L. H. Macomber as receiver have participated in the estate of the said Peter Thompson Company, and have received through said source a greater percentage upon their indebtedness than the other creditors whose claims have been filed and allowed in this estate, and being of the opinion heretofore expressed, as shown by the files and records herein, that the creditors of Peter Thompson and those creditors represented by L. H. Macomber as receiver should share equally and ratably, and the said creditors represented by said L. H. Macomber as receiver having refused to pay back or to tender the several amounts paid to them under said receivership proceedings, the same are not therefore entitled to participate in the funds of this estate, and the claim of the said L. H. Macomber is therefore disallowed.'

The cause was, on August 28, 1919, again certified to the District Court. The referee by his certificate defines the effect of his order as follows:

'The present order bars claimant from sharing in this fund. But it leaves him free to share in any other fund, or estate that may be discovered. The referee never considered that this claim had any merits. When he made the order allowing the respective creditors to share in the funds to which they had contributed, and they did so, and those two funds comprised all the estate, there was nothing to

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