Rhodes v. Elliston, No. 5478.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWALKER, BRYAN, and FOSTER, Circuit
Citation29 F.2d 737
Decision Date21 December 1928
Docket NumberNo. 5478.
PartiesRHODES v. ELLISTON. In re BARRETT & CO., Inc.

29 F.2d 737 (1928)

RHODES
v.
ELLISTON.
In re BARRETT & CO., Inc.

No. 5478.

Circuit Court of Appeals, Fifth Circuit.

December 21, 1928.


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.

BRYAN, Circuit Judge.

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.

29 F.2d 738

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...

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6 practice notes
  • Meadow Brook National Bank v. Recile, Civ. A. No. 67-341.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • April 28, 1969
    ...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 ¶ 11.09 (14th ed.). We......
  • Marks v. Brucker, No. 23827.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 20, 1970
    ...for purposes of distribution. In re James A. Brady Foundry Co., 3 F.2d 437 (C.C.A. 7); In re Barrett & Co. (D.C.) 27 F.2d 159, affirmed 29 F.2d 737 (C.C.A. 5); In re Hoey, Tilden & Co. (D.C.) 292 F. 269; In re Service Applicance Co. (D.C.) 39 F.2d 632; In re Kenwood Storage & Warehouse Corp......
  • Coleman v. Alcock, No. 17662.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 5, 1960
    ...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 estate, because the trustee was not mad......
  • Highpointe Energy, LLC. v. Viersen, 119,385
    • United States
    • Supreme Court of Oklahoma
    • June 2, 2021
    ...court would have had to give him permission to take corrective action. 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 that the Trustee attempted t......
  • Request a trial to view additional results
6 cases
  • Meadow Brook National Bank v. Recile, Civ. A. No. 67-341.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • April 28, 1969
    ...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 ¶ 11.09 (14th ed.). We......
  • Marks v. Brucker, No. 23827.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 20, 1970
    ...for purposes of distribution. In re James A. Brady Foundry Co., 3 F.2d 437 (C.C.A. 7); In re Barrett & Co. (D.C.) 27 F.2d 159, affirmed 29 F.2d 737 (C.C.A. 5); In re Hoey, Tilden & Co. (D.C.) 292 F. 269; In re Service Applicance Co. (D.C.) 39 F.2d 632; In re Kenwood Storage & Warehouse Corp......
  • Coleman v. Alcock, No. 17662.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 5, 1960
    ...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 estate, because the trustee was not mad......
  • Highpointe Energy, LLC. v. Viersen, 119,385
    • United States
    • Supreme Court of Oklahoma
    • June 2, 2021
    ...court would have had to give him permission to take corrective action. 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 that the Trustee attempted t......
  • Request a trial to view additional results

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