In re Williams' Estate

• Decision Date: 04 November 1907
• Docket Number: 1,339.
• Citation: 156 F. 934
• Parties: In re WILLIAMS' ESTATE. v. HARRISON (two cases). ANHEUSER-BUSCH BREWING ASS'N
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 934

In re WILLIAMS' ESTATE.

ANHEUSER-BUSCH BREWING ASS'N v. HARRISON (two cases).

No. 1,339.

United States Court of Appeals, Ninth Circuit.

November 4, 1907

Willett & Willett, W. H. Chickering, Warren Gregory, and Allen L Chickering, for petitioner and appellant.

John H Allen, for respondent and appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The question involved in these proceedings is one of law and arises upon the record. The appellant and petitioner, being uncertain in respect to the proper procedure, sought and was by the court below allowed an appeal from the ruling of that court complained of, and also filed therein a petition for the revision of the same order. The two proceedings were by this court consolidated, and were heard and submitted on one record. If it be conceded that the petition for revision was filed in the wrong court, the appeal, involving as it does only a question of law, may be treated as a petition for revision. In re Abraham, 93 F. 767, 783, 784, 35 C.C.A. 592; In re Blair, 106 F. 662, 665, 45 C.C.A. 530; In re Jacobs, 99 F. 539, 39 C.C.A. 647.

In brief, these, among other, facts, are made to appear by the original and supplemental records filed herein: On the 16th day of September, 1905, Williams, who was at the time conducting a saloon and cafe in the city of Seattle, was adjudged a bankrupt. The matter was duly referred to one of the referees in bankruptcy, and one Murray was appointed receiver of the bankrupt's estate. The receiver qualified as such and proceeded to carry on the business in much the same way that the bankrupt did-- at a loss. On the 11th of October, 1905, the Anheuser-Busch Brewing Association and Pacific & Puget Sound Bottling Works, corporations, presented to the referee a petition setting forth various loans made by the association to Williams, secured by certain chattel mortgages executed by him upon the contents of his saloon and cafe, and by the assignment of the leases of the premises and insurance policies thereon, and also by the bottling company under certain agreements with Williams, all of which were specifically set forth in the petition, together with the alleged failure of the trustee in bankruptcy to pay certain installments of the rent due, and the alleged payment by the brewing association of the premium upon the insurance and its payment of the rent in order to protect the premises, and setting forth the maturity of the respective loans so secured by the mortgages, assignments, and other agreements set forth in the petition, and alleging that all of the assets of the bankrupt's estate, except such as were held by other preferred creditors, were contained in the saloon and cafe in the city of Seattle known as 'The Pike,' which place had been running and doing a good business up to the time of Williams' adjudication in bankruptcy; that it had acquired a valuable good will, which was becoming less every day the place remained closed; that it was impracticable to conduct the place under the trustee in bankruptcy, for the reason that the stock that would have to be sold by him was covered by the chattel mortgages, and that the place could not be made to pay under a trustee in any event; that a purchaser could be had at the time, if the place could be sold immediately, who would pay what the place was reasonably worth, and more than it would bring if such sale were postponed; that arrangements could probably be made between the petitioners and any purchaser who might take the place at the time that would make it possible for the purchaser to pay something for the equity of the estate over and above all claims of the petitioners; that the general creditors had little or no interest in the estate, and could get nothing on their amounts if a sale should be postponed; that the property was depreciating in value, and would continue to depreciate so long as it remained unsold; that the assets were uninsured, and there was imminent danger of total loss; that it would be necessary, if the sale should be postponed, to have the property insured and extra expense incurred therefor; that the trustee had no funds with which to pay the rent of said premises, and the owners thereof were threatening to declare a forfeiture of the leases; that an emergency existed such as would justify the court in ordering an immediate sale of 'The Pike,' together with the stock therein and its license, without the usual notice to creditors; that the petitioners were entitled to have their securities foreclosed and the proceeds applied to the payment of their preferred claims, as set forth in the petition, and insisted on the same being done. The petitioners therefore prayed an order of the District Court directing the trustee to sell all of the assets of the estate covered by the alleged securities at public or private sale, as the court might deem best; that such sale be made absolute and free from any and all liens or incumbrances; that the court declare that an emergency existed and order the trustee to make such sale forthwith; that the proceeds thereof be paid into court to be applied to the preferred liens of the petitioners as set forth in the petition; that they be declared joint creditors as to one-half of the $3,000 loan set forth in the petition, which was not secured to either of them; that the trustee be required to keep the place known as 'The Pike' and all assets therein covered by insurance, and in a sum equal to its value, pending the sale, and that the rights of the petitioners therein be properly protected; that a proper order be made concerning the payment of the rent of the premises; that no property covered by the mortgages set out in the petition be removed by the trustee from 'The Pike' pending the sale, and that attorney's fees, as provided for in the notes and mortgages set out by the petitioners, be allowed.

On the 17th day of October, 1905, the trustee of the bankrupt estate also petitioned the court for a sale of all of the property of the bankrupt at private sale, subject to the amount due upon the debt secured by the $5,000 mortgage held by the brewing association and free and clear of any lien or claim of the $4,000 mortgage held by that association. The petition of the trustee stated that he had filed in court an inventory of all of the property of the bankrupt, except the two leases held by him of a portion of the Eitel Building, and that those leasehold interests and the personal property mentioned in the inventory constituted all of the property of the bankrupt, or in which he had any interest, that had come to the knowledge of the trustee. The petition of the trustee also contained the following:

'That the bankrupt was in the saloon business; that he had a place on First avenue, which he had disposed of just prior to the filing of the petition in bankruptcy herein; that his other place was on Pike street, in the Eitel Building, and was known as 'The Pike'; that upon disposing of the First Avenue place the bankrupt retained therefrom a large amount of stock and property, and the same has at all times been kept separate and apart from the property at 'The Pike'; that some of the creditors hold claims solely for goods sold at First avenue and others hold claims solely for goods sold at 'The Pike.' Therefore your trustee thought it for the best interests of all parties concerned to keep said property separate, and has inventoried

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