Traub v. Marshall Field & Co.

• Decision Date: 02 November 1910
• Docket Number: 2,130.
• Citation: 182 F. 622
• Parties: TRAUB v. MARSHALL FIELD & CO.
• Court: U.S. Court of Appeals — Fifth Circuit

182 F. 622

TRAUB v. MARSHALL FIELD & CO.

No. 2,130.

United States Court of Appeals, Fifth Circuit.

November 2, 1910

Geo Huddleston, for petitioner.

Vassar L. Allen, for respondent.

This was an application by a creditor to reopen a bankrupt's estate. The application was granted against the bankrupt's objection, and this action of the District Court is sought to be reviewed.

Traub was adjudged a bankrupt on December 4, 1907. A trustee was appointed shortly afterward, and on December 10, 1909, the trustee was discharged and the estate closed by order of the court. On June 16, 1910, respondent, as a creditor, filed a petition to reopen the estate. The petition as amended alleged the adjudication in bankruptcy; that the estate had been closed on December 10, 1909; that in December, 1907 Traub had delivered $4,000 to one Schwartzman, with the statement that the money belonged to Mrs. Traub; that Mrs Traub, in January, 1908, had stated on examination that she had assets amounting to less than $1,000 and no money deposited. The petition alleged on information and belief that the $4,000 was the property of Traub and subject to administration, and alleged that petitioner first learned of the facts in the matter prior to June, 1909.

By way of excuse for the delay in filing the petition, it was alleged that it was 'impliedly agreed' between petitioner's attorney and the attorney for the trustee that it would be better to defer action against Traub until after the trial of an indictment which had been found against Schwartzman, and that Traub's estate would not be closed until after the termination of Schwartzman's case, nor until a course of proceeding against Traub had been agreed on.

Traub demurred to the petition, making in several forms the objections: (a) That the petition did no show what property was surrendered by the bankrupt, nor what representations were made in his schedules, nor that any creditor had been deceived as to the facts in the case or by the schedules; and (b) that petitioner's action was stale and the relief barred by laches and delay.

Traub's demurrer being overruled by the court, he filed answer as follows:

'said bankrupt, for answer to the amended petition of Marshall Field & Co., praying that the said estate be reopened says:

'(1) He admits the allegations of the first paragraph of said petition.

'(2) He is informed that the allegations of the second paragraph of said petition are true, and therefore admits same.

'(3) He admits the allegations of the third paragraph of the petition.

'(4) Answering the fourth paragraph of said petition, he denies that said estate has not been fully administered. He admits that in December, 1907, he delivered $4,000 to D. Schwartzman, and says that said money was the property of Mrs. Minnie Traub, who had handed it to respondent with instructions to deliver the same to said Schwartzman. He admits that on his examination in bankruptcy he stated that he had no assets in the hands of any other person and no assets other than those disclosed by such examination or by his schedules, and he avers that the statements then made by him were true and correct. He is not advised as to any statement made by said Minnie Traub on any examination had by her in said cause, and he is informed and believes, and on such information and belief states, that the said Minnie Traub made no such statement as alleged in such paragraph and that the said Minnie Traub did not then and there state under oath, as alleged, that all her possessions and property in money consisted of less than $1,000, and that she had no money deposited elsewhere, and he expressly denies this allegation of the petition. He further avers that the information that he had delivered money to said Schwartzman under the circumstances mentioned in said petition came to said petitioner and was in its possession prior to June 16, 1909, and that on said

...