Meyer Bros. Drug Co. v. Pipkin Drug Co.

• Decision Date: 21 March 1905
• Docket Number: 1,346.
• Parties: MEYER BROS. DRUG CO. v. PIPKIN DRUG CO.
• Court: U.S. Court of Appeals — Fifth Circuit

136 F. 396

MEYER BROS. DRUG CO. v. PIPKIN DRUG CO.

No. 1,346.

United States Court of Appeals, Fifth Circuit.

March 21, 1905

For some time prior to October 17, 1902, the Pipkin Drug Company was doing a drug business in Beaumont, Tex. On that date said company desired L. B. and S.W. Pipkin, resident citizens of Jefferson county, Tex., who were not members of, and had no business connection with, it, to become accommodation indorsers for said company in the sum of $2,500, and, to indemnify them in so doing, offered them a chattel mortgage on certain trade fixtures used in the drug store in Beaumont. The Pipkins indorsed the paper, and, in pursuance of its promise, on November 22, 1902, the company gave the chattel mortgage, which was executed and delivered on that date. There is no proof of insolvency of the drug company at that time, or of any fraudulent purpose in making the mortgage on the part of either the drug company or the Pipkins. On June 2, 1903, the chattel mortgage to the Pipkins was filed for record in the county clerk's office of Jefferson county Tex., where the property was situated. An involuntary petition in bankruptcy was filed against the Pipkin Drug Company in the District Court for the Eastern District of Texas, at Beaumont, on the 24th day of June, 1903, upon alleged grounds and acts having no connection whatever with this mortgage or transaction. When the note for $2,500 which they had indorsed fell due, L. B. and S.W. Pipkin were compelled to pay and did pay the same in full, and afterwards assigned to the Meyer Bros. Drug Company, for a valuable consideration, their claim against the Pipkin Drug Company. On July 20th, 1903, the Pipkin Drug Company was adjudged bankrupt. In due form, the Meyer Bros. Drug Company presented its claim and security under said chattel mortgage on the referee for allowance and adjudication as a secured claim. A contest was filed by R. E. Smith, the trustee of said estate and, on hearing before the referee, the claim of the Meyer Bros. Drug Company was allowed for the full amount, but the chattel mortgage was held invalid, because, though it was executed and delivered more than four months prior to the filing of the petition and the adjudication of bankruptcy, it had not been filed for record until within said period. This action and decree of the referee was taken by the Meyer Bros Drug Company before the honorable District Court for the Eastern District of Texas, at Beaumont, for rehearing and revision; and the said court entered its judgment, in all things affirming the decision of the referee, for the reasons assigned by him in his conclusions of law. The Meyer Bros Drug Company has brought the petition to superintend and revise in matter of law the proceedings of the said referee and of the said District Court in the premises, and asks to have so much of said orders and judgment as declare the invalidity of the mortgage set aside, and to have the said mortgage adjudged and enforced as a valid security existing for its benefit.

Jno. C. Townes and E. E. Townes, for petition.

H. M. Whitaker, for respondent.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE Circuit Judge (after stating the facts).

The trustee of the bankrupt's estate moves to dismiss this petition to revise because it was not allowed by any judge of this or the lower court; no bond has been given; the transcript of the record filed is not certified by the clerk of the lower court; the transcript does not contain the pleadings upon which the issues were tried, nor show who are the proper parties to this proceeding; the transcript does not contain the evidence upon which the findings of the referee were based; the petition to revise was filed more...