Kirker v. Owings

• Decision Date: 05 July 1899
• Docket Number: 659.
• Citation: 98 F. 499
• Parties: KIRKER et al. v. OWINGS et al.
• Court: U.S. Court of Appeals — Sixth Circuit

98 F. 499

KIRKER et al. v. OWINGS et al.

No. 659.

United States Court of Appeals, Sixth Circuit.

July 5, 1899

This is an appeal from a decree of the circuit court for the payment of $1,300 against E. C. Kirker, personally, and S. T. Dewees the surety on Kirker's bond as receiver of the court. The decree was entered in the suit in which Kirker had been appointed receiver. The suit was begun, by what was termed an 'ancillary bill,' by Robert Ballard, trustee, against the Ella Layman Towboat Company. Ballard averred that he was a citizen of Ohio, and that the Ella Layman Towboat Company the defendant, was organized under the laws of the state of West Virginia for the business of towing and freighting coal and other commodities, and owning a number of steamboats and barges, and other plants and appliances incident to such business; that on November 23, 1896, the company had made an assignment to complainant for the benefit of creditors; that among the assets assigned was the steamboat Springhill, nine barges, and one flat, all of which were then in the Tennessee river. The remaining averments of the bill were as follows: 'Your orator further shows that as the creditors of the said company are not mentioned in said trust deed, as the same gives no directions as to the manner, time, and terms of disposing of the same, it is necessary, in order that said trust may be properly executed and the proceeds of the trust properly disbursed, that the creditors of the said company should be ascertained by proper proceedings under your honors' direction and protection; your orator being ignorant of the names of said creditors, and the amounts of their claims. And it is also proper for the protection of your orator, and the due discharge of his duties as trustee, that he should have the advice and direction of this honorable court, and that said trust should be administered under its directions. Your orator further represents that he is informed, believes, and charges, that said company has on its hands a number of contracts for towing and freighting, two of which are for conveying coal from Greenville, Miss., to New Orleans and other Southern points, and for towing iron ore on the Tennessee river, which contracts are both profitable ones to the company, out of which it has been making money, and which have yet some time to run; that, as your orator is informed believes, and charges, it will be to the advantage of the creditors of said company to carry out these contracts and others, and, pending the sale of this company's property, to keep the same occupied in a continuance of the towing and freighting business of this company. And on account of the character of the trust property and the use which your orator believes should be made of it pending its disposal, it is, in your orator's judgment, best that a receiver be appointed by this court to take charge and possession of all said property, and manage and dispose of it under the direction of your honors, which receiver should be a competent river man, acquainted with the character of the business of said company. Complainant charges that an original general creditors' bill has been filed by complainant in the United States circuit court for West Virginia, and a receiver appointed therein, and complainant asks that the receivership be extended over the property in Tennessee under this ancillary bill. Your orator therefore prays that the creditors of said company, and the amounts and priorities of their claims, may be ascertained under the direction of your honors' court; that a receiver may be appointed to take charge and possession of said trust property, and to use, manage, and dispose of the same under your honors' direction; that all proper accounts be directed, and decrees entered; and for such other, further, and general relief and decree as the equity of the case may require, and to your honors may seem meet.'

On the same day that the bill was filed a certified copy of the order by the circuit court for the district of West Virginia was filed, which, after reciting that actions had been brought against the defendant company in the circuit court of Roane county, Tenn., and attachments had been issued and levied upon the steamer Springhill, and that the loss of the use of the steamer would be fatal to the profitable contract which the defendant company had for towing upon said Tennessee river, authorized the receiver to remove the case from the circuit court of Roane county to the circuit court for the Eastern district of Tennessee, and to give bond in the attachment suit for the release of the steamer Springhill, and to use the same in the towing contract on the Tennessee river. Upon the tendering of the bill and the order the court below allowed the bill to be filed, and made the following order: 'The complainant is allowed to file the ancillary bill presented, and this cause will be taken and considered as ancillary to the original bill in West Virginia. The order of Judge Jackson, of December 5, 1896 will be filed in this cause as part of the record; and thereupon this cause came on to be heard on this 11th day of December, 1896, before Hon. C. D. Clark, judge, etc., upon the motion of complainant for the appointment of a receiver for the property attached; and it appearing to the court that this is a proper case for the appointment of a receiver, it is ordered by the court that E. C. Kirker, who appears to the court to be a proper and fit person, be, and he is hereby, appointed receiver in this case, and required to give bond in the sum of $4,000; and he is authorized to take possession of the property attached, and the other property of defendant in this state, and hold the same subject to the further orders of the court in this case. And because it appears further to the court, from the admissions of both parties, that the defendant Ella Layman Towboat Company has made a general assignment for the benefit of creditors to Robert Ballard, trustee, and that said Robert Ballard, trustee, has filed a general creditors' bill to wind up the business and affairs of said Ella Layman Towboat Company, in the United States circuit court for West Virginia, and that under said bill said E. C. Kirker has been appointed receiver, and has taken possession of the property of said Ella Layman Towboat Company, except the property attached in this cause; and because it appears further to the court, from the statements of counsel for the parties, that said towboat company has a contract for towing ore on the Tennessee river from points near Kingston to South Pittsburg, which contract is believed to be profitable and advantageous to the creditors of said towboat company, to have the same carried out, and that it is impossible to carry out said contract unless said E. C. Kirker, as receiver, is allowed to use the steamer Springhill, upon which the attachment has been levied by James Heekin & Co.,-- it is therefore ordered by the court that said E. C. Kirker be allowed to make all proper and necessary use of said steamer Springhill in towing said ore and carrying on said contract, and doing such other work on said Tennessee river and tributaries as it is legitimate for a steamer to engage in. But the said E. C. Kirker, receiver, is ordered and required to keep said steamer in good repair, and to keep the same insured in the sum of five thousand dollars (5,000), so that in the event said steam should be destroyed by fire the amount of said insurance received shall be paid into this court, to stand in lieu and stead of said steamer, to await the determination of this suit. Said steamer shall not be taken out of the state of Tennessee, unless authorized by further order of the court. Said E. C. Kirker will be required to give bond in the sum of $4,000, to be approved by the clerk of the court, for the faithful discharge of his duties in this case.'

On December 14th, Kirker filed the following bond:

'.in the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee.

'This undertaking, made and entered into the 14th day of December, 1896, witnesseth, that we (E. C. Kirker, as principal, and Samuel T. Dewees, as security) do promise and undertake to and with the parties in interest in said cause, for the benefit of whom it may concern, in the penal sum of $4,000, that E. C. Kirker will well and faithfully discharge the duties of receiver of the property and estates of the defendant company, particularly described in the bill in the above-described cause, and obey all orders of the court herein. Witness our hands and seals this 14th day of December, 1896.

'E. C. Kirker, 'Samuel T. Dewees.

'Acknowledged before and approved by me this 14th day of December, 1896.

Henry O. Ewing, Clerk.'

On the 27th of September, 1897, the receiver, made the following report to the court: 'Your receiver begs leave to submit the following report in reference to the business and management of the property of the Ella Layman Towboat Company, embracing the jurisdiction of your honor's court: Exhibit No. 1 is a statement of the expenditures and receipts from November 24, 1896, to September 1, 1897; also statement of the amount of ore delivered at South Pittsburg, and the amount obtained by Roberts, Sparks & Co. out of said shipments, to be applied on payment for barges; and shows, also, profit and loss, showing the net amount of the earnings of the steamer Springhill to have been $2,500.81, showing the payment on the barge account to have been $747.75 in excess of the earnings of the boat. When your receiver took charge of the business, he was confident that the steamer could be run, and made to pay expenses and repairs to the boat, and allow the application to the barge account...