Rhodes v. Elliston
| Decision Date | 21 December 1928 |
| Docket Number | No. 5478.,5478. |
| Citation | 29 F.2d 737 |
| Parties | RHODES v. ELLISTON. In re BARRETT & CO., Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul T. Chance, of Augusta, Ga., and Henry B. Curtis, of New Orleans, La., for appellant.
Wm. H. Fleming, Boykin Wright, and Geo. T. Jackson, all of Augusta, Ga., for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is an appeal from an order of the District Judge rejecting a claim of A. S. Rhodes against the bankrupt estate of Barrett & Co., Incorporated. The claimant having died, the appeal was taken by his administratrix.
Rhodes brought suit in a state court against Barrett & Co., alleging that it was in possession of 68 bales of cotton belonging to him, which he had stored with Pilcher & Dillon as warehousemen, and that Pilcher & Dillon, without his authority, wrongfully delivered the cotton to Barrett & Co. in payment of obligations due by them to it. Shortly afterwards Barrett & Co. was adjudged a bankrupt; but its trustee was given notice of the pendency of that suit. The trustee was present at the beginning of the trial, but declined to defend. The trial proceeded ex parte, and the petition was amended, without further notice to the trustee, so as to allege that Barrett & Co. sold the cotton and appropriated the proceeds, and a judgment was rendered for its market value as of the date Rhodes made demand for it upon Pilcher & Dillon. Rhodes filed a copy of that judgment as an amendment to his proof of claim, which theretofore had been submitted to the referee. By order of the District Judge the referee rejected the judgment as conclusive proof, and proceeded to take testimony upon the merits of the claim. That testimony was in conflict upon the question whether the cotton was delivered to Pilcher & Dillon as warehousemen or as cotton factors. There was some circumstantial evidence tending to show that Barrett & Co. received the cotton from Pilcher & Dillon. There was no evidence to the effect that Barrett & Co. ever sold the cotton, but it was undisputed that it paid for all cotton it received from Pilcher & Dillon.
The judgment was a personal one against the bankrupt. It was not binding on the bankrupt estate, because the trustee was not made a party defendant. Under section 11d of the Bankruptcy Act the exclusive power to order a trustee to defend a suit in a state court is vested in the bankruptcy court. 11 USCA § 29. It therefore was not error to refuse to accept...
To continue reading
Request your trial
-
Meadow Brook National Bank v. Recile
... ... The "court" referred to in § 11(b) is the bankruptcy court which has the exclusive power to order the trustee to defend a suit such as this. Rhodes v. Elliston, 29 F.2d 737 (5th Cir. 1928). This is implicit in the whole tenor of Collier's discussion of this provision. 1 Collier on Bankruptcy ¶ ... ...
-
Marks v. Brucker
... ... Only in a limited situation will the Trustee be foreclosed. This will not include a mere in personam proceeding for if, as we have said in Rhodes v. Elliston, 5 Cir., 1928, 29 F.2d 737, 738, `The judgment was a personal one against the bankrupt,' then, `it was not binding on the bankrupt ... ...
-
Coleman v. Alcock
... ... Only in a limited situation will the Trustee be foreclosed. This will not include a mere in personam proceeding for if, as we have said in Rhodes v. Elliston, 5 Cir., 1928, 29 F.2d 737, 738, "The judgment was a personal one against the bankrupt," then, "it was not binding on the bankrupt ... ...
-
Highpointe Energy, LLC. v. Viersen
... ... Hall v. Main , 34 F.2d 528 (E.D. Ill. 1929) ; Rhodes v. Elliston , 29 F.2d 737 ; Reeves v. Jenkins , 1968 OK 46, 439 P.2d 941. This is precisely the point. There is no indication from the record ... ...