Senchal v. Carroll

• Decision Date: 23 May 1968
• Docket Number: No. 9352.,9352.
• Citation: 394 F.2d 797
• Parties: John D. SENCHAL and Grace Senchal, husband and wife, and Thelma Harkreader, Appellants, v. V. H. CARROLL, as Trustee of Raymond H. Gestes, Sole Trader, d/b/a All American Fence Company, a/k/a Wichita Fence Co., a/k/a Denver Fence Company, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

394 F.2d 797 (1968)

John D. SENCHAL and Grace Senchal, husband and wife, and Thelma Harkreader, Appellants, v. V. H. CARROLL, as Trustee of Raymond H. Gestes, Sole Trader, d/b/a All American Fence Company, a/k/a Wichita Fence Co., a/k/a Denver Fence Company, Appellee.

No. 9352.

United States Court of Appeals Tenth Circuit.

May 23, 1968.

Reagan M. Martin, Dallas, Tex. (Harvey L. Davis, Dallas, Tex., on the brief), for appellants.

Robert C. Bailey, Oklahoma City, Okl. (Thomas G. Marsh, Tulsa, Okl., on the brief), for appellee.

Before LEWIS, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

The trustee for the bankrupt commenced this action to set aside transfers of money and property made by the bankrupt, and require that the property be revested in the trustee. The trial court granted judgment for the trustee, and this appeal was taken. Appellants urge two grounds for reversal; that their request for a jury trial was improperly denied, and the trial judge should have disqualified himself.

The property transferred to appellants as listed in the exhibit attached to the complaint in this plenary action included real estate, office furniture and equipment, automobiles and trucks, some twenty-five race horses, several head of cattle, and money. The money alleged in the complaint to have been transferred in cash was stated to be in excess of $200,000. The complaint prays that the conveyances be decreed to be fraudulent, that they be set aside, that the defendants be required to account for, return, and reconvey the property to the trustee, and a restraining order be issued.

The appellants counterclaimed for judgment in a stated amount or, in the alternative, that a claim against the trustee be established for such amount. The basis for the claim alleged was the bankrupt's failure to construct a paddock and other improvements on the real estate conveyed to them by the bankrupt, and sought to be revested in the trustee.

The trial court ordered the appellants to reconvey the personal and real property with all rents, profits, and increase (less expense of preserving the assets), and to turn over any receipts from the sale of any assets. The court also ordered that funds previously ordered to be paid by appellants to the clerk of the court be turned over by the clerk to the trustee, and that funds held by a bank under order of the court be transferred to the trustee.

The relief sought by the complaint is described above, and basically, the court was asked to revest the property in the bankrupt's estate. To afford the relief sought the court would have to order formal reconveyances of some of the property and delivery of other items, all of which would require affirmative action by the defendants with reference to the particular property listed. As mentioned above, no damages were sought nor money judgment prayed for. The remedy sought required and included an accounting, as the accounts were involved and lengthy. The trial lasted some nine days and several hundred accounting exhibits were introduced.

The Supreme Court in recent years has decided several significant cases concerned with the right to a jury under the Seventh Amendment. Among these are Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44.

In Dairy Queen there were combined claims in equity and for a money judgment. The claim basically was for either a breach of contract or for trademark infringement. The Supreme Court there considered the rules providing for the joinder of legal and equitable actions and pointed out the provisions of Rule 38(a) of the Rules of Civil Procedure. The Court reviewed its holding in Beacon Theatres with respect to the trial of legal issues first to a jury when they are combined with equitable issues. The Dairy Queen complaint asked for an accounting covering the contract period and this would have been somewhat complicated. The Court notices that there may be cases of such nature so complicated that only a court of equity can "unravel" them but they will be most unusual. The Court held that the parties had a right "* * * to have the jury determine not only whether the contract has been breached and the extent of the damages if any but also just what the contract is." See also Johnson v. Gardner, 179 F.2d 114 (9th Cir.).

The earlier case of Beacon Theatres concerned contracts to show exclusively first-run motion pictures, and protection from others showing the same films until a certain time had elapsed. The complaint also alleged a controversy under the antitrust act. The trial court found the portions of the complaint seeking declaratory relief were equitable, but the Supreme Court held that the right to a jury in the treble damage aspect would prevail over all. The Court thus held that the equitable issues and defenses could be properly...