In re Walker Grain Co.
| Citation | 8 F.2d 510 |
| Decision Date | 13 October 1925 |
| Docket Number | No. 1001.,1001. |
| Parties | In re WALKER GRAIN CO. |
| Court | U.S. District Court — Northern District of Texas |
E. B. Robertson, H. T. McGown, and P. T. Lomax, all of Fort Worth, Tex., W. E. Spell, of Waco, Tex., and Merritt & Leddy, of Dallas, Tex., for the motion.
George M. Conner, Boykin & Ray, and Capps, Cantey, Hanger & Short, all of Fort Worth, Tex., opposed.
On the 3d day of July, A. D. 1925, this court entered an order affirming the holding of the referee, disallowing the claim of J. L. Walker for $25,403.13, on the ground that the said Walker had received a voidable preference in excess of the amount of that claim which he had failed and refused to restore. Thereafter, on an early date in August, when this court was in session, a motion was made by Walker to set aside that order. In the meantime Walker had filed a voluntary petition in bankruptcy, and B. K. Goree, Esq., of the Fort Worth bar, had been appointed receiver of his estate, and it was suggested that it would be well to allow Mr. Goree to consider intervening and taking charge of the litigation.
On an early date in September, Receiver Goree did become the mover in that motion. The case was set down for hearing on October 9th. Upon that date full oral argument was had. Because I am always responsive to any speedy method for terminating disputes, I welcomed the suggestion of the trustee, made through the former counsel of Walker, that the court should look into the claims made by Walker, and if there was no merit in them that would be the end of it, and if they were meritorious they could be allowed and the difference, if any, could be paid over to Trustee Wilkinson, and the entire matter ended.
Casual consideration of the cases of Page v. Rogers, 211 U. S. 581, 29 S. Ct. 159, 53 L. Ed. 332, Keppel v. Tiffin Savings Bank, 197 U. S. 359, 25 S. Ct. 443, 49 L. Ed. 790, and In re Wright-Dana Hardware Co., 212 F. 403, 129 C. C. A. 73, seemed to justify that course. A more thorough consideration of the statute and of the three cases mentioned, together with the facts of the case at bar, drive me to a different opinion.
The case of Page v. Rogers, 211 U. S. 581, 29 S. Ct. 162, 53 L. Ed. 332, contains this language: "Now that this litigation has come to an end, and the defendant has been compelled to surrender the preference which he received, he is entitled to prove his claim, and to receive a dividend on it upon an equality with other creditors." That statement is supported by a citation of the case of Keppel v. Tiffin Savings Bank, 197 U. S. 359, 25 S. Ct. 443, 49 L. Ed. 790. In truth, that was the condition in both Page v. Rogers and Keppel v. Tiffin Savings Bank. That is not the condition of the present case. I feel sure that the Supreme Court did not intend to repeal section 57g of the Bankruptcy Act (Comp. St. § 9641). Nisi prius courts and courts of appeal have been giving constant effect to that most salutary provision.
Mr. Walker has not only not surrendered his preferences, but he has bordered on the contumacious with reference to restoration of moneys which this court has ordered him to restore, and he has been the recipient of alleged fraudulent transfers. None of these funds has ever been surrendered to Trustee Wilkinson. There has been no voluntary nor involuntary surrender. I cannot hold that voluntary bankruptcy, even in the same court with a different trustee, months and perhaps years after the entry of some of the orders and judgments, is that surrender which the law demands.
Section 57g reads as follows: "The claims of creditors who have received preferences, voidable under section 60, subdivision b, or to whom conveyances, transfers, assignments, or...
To continue reading
Request your trial