Salsburg v. Blackford

• Citation: 204 F. 438
• Decision Date: 10 February 1913
• Docket Number: 1,104.,1,069
• Parties: SALSBURG v. BLACKFORD (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

204 F. 438

SALSBURG v. BLACKFORD (two cases).

Nos. 1,069, 1,104.

United States Court of Appeals, Fourth Circuit.

February 10, 1913

Charles H. Sachs, of Pittsburgh, Pa., A. J. Montague and R. L Montague, both of Richmond, Va., and J. B. Handlan, of Wheeling, W. Va., for petitioner and appellant.

J. W Ritz, of Wheeling, W. Va., for respondent and appellee.

Before PRITCHARD, Circuit Judge, and WADDILL and ROSE, District judges.

PER CURIAM.

This case is brought here by petition to revise and by appeal. At the hearing at this bar the counsel for the petitioner and appellant admitted that these remedies were not cumulative but were mutually exclusive. They elected to stand upon the appeal.

The petition to revise in No. 1,069 must therefore be dismissed.

The findings of the referee, and the learned court below, are fully set forth in Re Schoenfield (D.C.) 190 F. 53. The evidence in the record abundantly sustains the findings that the goods taken possession of by the bankrupt's receiver were part of the bankrupt's estate, and liable for the payment of the bankrupt's debts. Appellant most strenuously insists that he was in possession of the goods and that he claimed title in them adverse both to the bankrupt and the receiver and trustee, and that he could not properly be deprived of the possession, except as a result of plenary proceedings against him. In point of fact, the receiver actually obtained possession at the very inception of the controversy. They remained in his possession and that of the trustee until they were sold by order of the court and with the consent of all parties. Since then the trustee has held the proceeds. Before any considerable expense had been incurred, the learned judge below upheld the decision of the referee that the receiver's possession had been properly obtained, and that consequently title to the goods could rightly be determined in summary proceedings. Almost all of the enormous expense in the case has been since incurred. Had the validity or propriety of that order been then brought before us, the situation would have been very different from that with which we are now confronted. If, on the record as it at that time stood, we had been of opinion that the appellant was entitled to have the controversy between himself and the trustee fought out in plenary proceedings, no one would have been greatly the sufferer. Since then much has happened. There have been...