In re Torchia
| Decision Date | 20 June 1911 |
| Docket Number | 49 (1,517). |
| Citation | 188 F. 207 |
| Parties | In re TORCHIA. |
| Court | U.S. Court of Appeals — Third Circuit |
James T. Buchanan, John E. McCalmont, Thomas H. Hasson, and Lyon & Hunter, for petitioner.
Charles A. Woods and James L. Wehn, for respondent.
Before BUFFINGTON and LANNING, Circuit Judges, and McPHERSON District judge.
The fund distributed by the District Court was too small to pay more than part of the judgment lien belonging to one of the petitioners, or to pay anything upon the four judgment liens immediately succeeding. These five lienholders assert that by reason of improper allowances and awards the fund the would otherwise have been available for their liens has been diverted, and they have therefore presented this petition to revise.
The allowances complained of are for commissions to the trustee (the South Side Trust Company) and compensation to its counsel, for commissions to the referee, for compensation to the receiver and to its counsel, and for compensation to the counsel for the bankrupt. No objection is made to the amount of any of these charges-- if, indeed, such objection could be made on this petition, a question that need not now be decided-- but the single ground of attack is that no allowance on account of any of the foregoing items should have been made, because the fund is solely derived from real estate upon which the judgments of the petitioners were liens at the date of bankruptcy. The recent decision of this court in Re Vulcan Foundry Co., 180 F. 671, 103 C.C.A 637, is referred to in support of this position. There is, however, an essential difference between the present situation and the situation that was there passed upon. Not only did the petitioners now before the court have ample notice that the referee was being asked for an order to sell the bankrupt's real estate discharged of liens, but they made no objection thereto; and, after the order had been made, they not only took no steps to have it reviewed by the District Court, but they permitted the trustee to go on for months in the gradual execution of the order and in the distribution from time to time of the proceeds. To use a phrase of the Vulcan Foundry Case, they consented by 'necessary implication' to all that was done, and their belated objections cannot now be regarded with favor. The objection to the commissions of the trustee and of the referee, and to the compensation of counsel for the trustee, the receiver, and the bankrupt, and the objection also to certain expenditures for the necessary care and preservation of the real estate, must be overruled.
But we are compelled to disagree with the District Court on the subject of the rents. In our opinion this question has been decided by the Supreme Court of Pennsylvania in Bausman's Appeal, 90 Pa. 178, and in Wolf's Appeal, 106 Pa. 545 and we are disposed to follow these rulings. It was there determined that, after insolvency has...
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...v. Saper, 1949, 336 U.S. 328, 330, Footnote 7, 69 S.Ct. 554, 93 L.Ed. 710; In re Torchia, D.C.Pa.1911, 185 F. 576, 584, affirmed 3 Cir., 1911, 188 F. 207; In re Hershberger, D.C.Pa.1913, 208 F. 94; Kagan v. Industrial Washing Machine Corp., 1 Cir., 1950, 182 F.2d 139, 146; Eddy v. Prudence ......
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