Walker Grain Co. v. Gregg Grain Co.

• Court: U.S. Court of Appeals — Fifth Circuit
• Citation: Walker Grain Co. v. Gregg Grain Co., 268 F. 510 (5th Cir. 1920)
• Decision Date: 10 November 1920
• Docket Number: 5551.
• Parties: WALKER GRAIN CO. v. GREGG GRAIN CO. et al.

268 F. 510

WALKER GRAIN CO. v. GREGG GRAIN CO. et al.

No. 5551.

United States Court of Appeals, Fifth Circuit.

November 10, 1920

W. H Slay, U. M. Simon, and Mike E. Smith, all of Ft. Worth, Tex for plaintiff in error.

H. C Ray, Stanley Boykin, and S. B. Cantey, all of Ft. Worth, Tex. (Capps, Cantey, Hanger & Short, of Ft. Worth, Tex., and Orestes Mitchell, of St. Joseph, Mo., on the brief), for defendants in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

This case has heretofore been before this court on a petition to superintend and revise the action of the District Court in appointing a receiver. The order appointing such receiver was held to be fully warranted. 260 F. 1022, 171 C.C.A. 669.

It originated on August 16, 1918, by the filing of a petition by the defendants in error against the Walker Grain Company, seeking to have it adjudged a bankrupt. In its answer thereto the respondent demanded a trial by jury on the questions of insolvency and the commission of acts of bankruptcy. This case was so tried on November 10, 1919.

At the conclusion of the evidence the petitioning creditors moved the court to peremptorily instruct the jury to find that the respondent while insolvent committed the acts of bankruptcy charged. The respondent moved the court to peremptorily instruct the jury to find all the issues in the case in its favor, except as to the corn actually shipped and as to the insolvency of respondent. The court found that the undisputed evidence showed that the respondent, within four months next preceding the filing of the petition herein, had committed acts of bankruptcy while insolvent, and was insolvent at the time of the filing of the said petition, and instructed the jury to find the respondent to be a bankrupt on the 16th day of August, 1918.

The error complained of is that the court should not have withdrawn the issues of insolvency and of the commission of the acts of bankruptcy from the jury. If the court did not err in so doing, the other errors assigned become immaterial. A trial by jury at this stage in bankruptcy proceedings is confined to two issues, namely, insolvency and the commission of the acts of bankruptcy. Elliott v. Toeppner, 187 U.S. 327, 23 Sup.Ct. 133, 47 L.Ed. 200.

The incidents of jury trial at common law, including the right of the judge to direct a verdict, as in other jury cases, attend such jury trials in bankruptcy.

'The trial before a jury is conducted and subject to the immemorial rules surrounding a trial at common law. The right to introduce evidence by way of deposition is unquestioned, and the method of taking evidence is further of deposition is unquestioned, and the method of taking evidence is further suggested by the equity rules. The judge can take the case from the jury by directing a verdict, if no question of fact develops, or he can set the verdict aside. If each party asks the court to direct a verdict in his favor, it is equivalent to a request for a finding of facts, and if the court directs the verdict, both parties are concluded on such findings. ' Collier on Bankruptcy (1917) pp. 490, 491.

If the evidence conclusively showed that the respondent was insolvent, and if there was evidence of the commission of the acts of bankruptcy charged, the instruction of the court was authorized.

In this case the petitioning creditors' claims originated in contracts made for the future delivery of corn. These contracts were admitted to have been made. A part of this corn was shipped, and rejected by respondent. The claims on this score amounted to $21,479.74. These were the claims which the respondent reserved from its request for peremptory instructions.

The remainder of the claims of petitioners was for the difference between the contract price and the market price of so...