Marshall Field & Co. v. Wolf & Bro. Dry Goods Co.
| Citation | 120 F. 815 |
| Decision Date | 02 February 1903 |
| Docket Number | 1,769. |
| Parties | MARSHALL FIELD & CO. v. WOLF & BRO. DRY GOODS CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
W. B Thompson (John W. Blackwood and John E. Williams, on the brief), for appellant.
George B. Rose (U. M. Rose and W. E. Hemingway, on the brief), for appellee.
Before CALDWELL, SANBORN and THAYER, Circuit Judges.
Wolf & Bro. Dry Goods Company, a corporation, having been adjudged a bankrupt on the petition of its creditors, offered to its creditors a composition of 30 cents on the dollar, which was accepted by a large majority in number and value of its creditors, and, after considering objections to the composition filed by the appellant in this case, and hearing evidence on the issues, the bankrupt court approved the composition, and thereupon, and before this appeal was taken there was paid to the several creditors accepting the composition the amount due them, respectively, and the estate of the bankrupt was returned to and disposed of by it. Neither the trustee nor the assenting creditors are made parties to the appeal, but only the bankrupt, and there is a motion to dismiss the appeal on this ground, which must be sustained. The creditors assenting to the composition, and who have received the amount due them thereunder, have a direct interest in maintaining the order appealed from, and should have been served with citation and made appellees in this appeal. Dodson v. Fletcher, 24 C.C.A. 69, 78 F. 214; Farmers' Loan & Trust Co. v. McClure, 24 C.C.A. 64, 78 F. 210; Dodson v. Fletcher, 24 C.C.A. 466, 79 F. 129; American Loan & Trust Co. v. Clerk, 27 C.C.A. 522, 83 F. 230; Boyd v. Stuttgart R.R., 28 C.C.A. 262, 84 F. 9; Grand Island R.R. v. Sweeney, 37 C.C.A. 127, 95 F. 396; Same v. Same, 43 C.C.A. 255, 103 F. 342.
If their number made it impracticable to make them all parties to the appeal, at least a sufficient number to insure an effective representation of the assenting creditors should have been made parties. The great body of the creditors having accepted the composition and received their money before this appeal was taken, the consequences of reversing the order of the court approving the composition would be very serious to them. They would have to repay the money they have received, and incur the risk of receiving a less sum from the trustee. It is very plain that the bankrupt does not represent the assenting creditors,...
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...decision, 73 F.2d 52, wherein the trustee will have to recover the monies paid out." The appellees cite Marshall Field & Co. v. Wolf & Bros. Dry Goods Co., 120 F. 815 (8th Cir. 1903), to support the position that the distribution requires affirmation of the Referee's decision. In that case,......
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Gray v. Grand Forks Mercantile Co.
... ... , sheriff, expenses incurred in an attachment of goods ... of the bankrupt prior to the filing of the petition in ... Co. v ... Sweeney, 43 C.C.A. 255, 103 F. 342; Marshall, Field ... & Co. v. Wolf Bro. Dry Goods Co., 57 C.C.A ... ...
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...Re Gottlieb, 262 F. 730, that such creditors need not be made parties. In so far as that decision may be in conflict with Field & Co. v. Wolf (C. C. A.) 120 F. 815, we are committed to our former position, as appears from having already entertained the appeal in this matter without the join......