Citation142 F.2d 577
Decision Date05 June 1944
Docket NumberNo. 10607.,10607.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Miller Walton and S. O. Carson, both of Miami, Fla., for appellant.

Julian E. Ross, of Fort Lauderdale, Fla., for appellee.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

In a municipal bankruptcy composition whereby the old bonds of the debtor were to be exchanged for new bonds with later maturities and less interest rates, the appellant Ed C. Wright,* owning thirteen of the bonds of one of the issues, offered a proof of them as debts to be affected by the composition. Objection was made that these bonds were not included in the composition, and also that they had been adjudicated to be invalid in a suit by Turner, trustee, a former owner of them. The petition and list of claims to be affected was then amended so as to omit all reference to these thirteen bonds. Wright did not appear before the master, to whom the proofs of all claims were referred, to defend these bonds, because, as he alleges, he understood them to be eliminated. The master however, reported them "disallowed as void bonds". Wright took no exceptions, and the judge on a hearing in which again Wright did not appear, overruled all exceptions to the master's report, and in some findings of his own said as to these bonds, after referring to the Turner case, "The holders of such bonds and coupons cannot recover against the petitioner, and such bonds and coupons are not refundable hereunder". The judge then signed an interlocutory decree confirming the plan proposed, on March 6, 1940. On Oct. 9, 1940, Wright filed a motion in which he stated that the petitioner not only amended its pleadings, but at the hearing before the master stated that these bonds were not included in and would not be affected by the plan of composition, and relying on this he had not followed the matter further; but that an interlocutory injunction was of force against the prosecution of any suits against petitioner, so an order was prayed to permit him to file a suit on these bonds in the State court to determine the liability therein without violation of the injunction, and that it be recited that they were not affected by the composition. There was a hearing of some sort on this motion and an order made that "The Court being of the opinion that the restraining order should not be lifted, it is thereupon ordered and adjudged that the motion be denied", dated Oct. 18, 1940. Certain other litigation having been concluded, notice of a final hearing and decree in the case was given. Before the decree was signed on Dec. 12, 1941, Wright made a petition under oath, which stated that of the thirteen bonds in controversy three, describing them, were purchased in open market by him before maturity, for a valuable consideration, and without notice of any defects or infirmities therein or defenses thereto, and he was the bona fide holder of them in due course; the remaining ten bonds were also purchased for a valuable consideration and without notice of any defenses, though it is not said these were bought before maturity. The petition states that in reliance on the petitioning debtor's objection that these bonds would not be affected by the composition he had not pressed his proof of them as claims, and was not aware of the proceedings purporting to determine them to be invalid till after the proceedings had culminated, and his failure to introduce evidence or argue his claim was due to mistake and inadvertence and error. The court was prayed to state in the final decree that these bonds were not included in or affected by the plan of composition or decree, with a provision vacating any injunction against bringing suit on them; or in the alternative to permit him to litigate in the bankruptcy court the validity of the bonds. The final decree was entered, but with express reservation of jurisdiction to determine the matters raised in the petition and do what was equitable and just. Testimony was later taken on the petition, but on Oct. 23, 1942, without considering the evidence, the court took the petition under advisement on a question of law only, and held that the matters raised had been determined by the interlocutory decree of March 6, 1940, and by the denial of the motion on Oct. 18, 1940, and it refused for that reason all relief. Appeal is taken from this judgment.

We think the court was in error in esteeming itself cut off by the judgments mentioned from investigating the merits of this petition. The denial of the motion on ...

To continue reading

Request your trial
8 cases
  • In re Nautilus Virgin Charters, Inc.
    • United States
    • Bankr. V.I.
    • June 30, 1982
    ...but not after the estate has been closed." 10 E.g. Klapper v. Danning, 444 F.2d 516 (9th Cir. 1971); Wright v. Public Board of Instruction for Broward, 142 F.2d 577 (5th Cir. 1944); Wayne Gas v. Owens, 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 577 (1937); In Re Jayrose Millinery, 19 F.Supp. 1013......
  • W. F. Hurley, Inc., In re
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 10, 1980
    ...of the bankruptcy judge has expired. In re Minskoff-Dorman Co., 444 F.2d 516 (9th Cir. 1971) (Per curiam ); Wright v. Board of Public Instruction, 142 F.2d 577 (5th Cir. 1944), Cert. denied, 326 U.S. 737, 66 S.Ct. 47, 90 L.Ed. 440 (1945); In re Jayrose Millinery Co., 19 F.Supp. (S.D.N.Y.), ......
  • De Ville Photography, Inc. v. Bowers
    • United States
    • United States State Supreme Court of Ohio
    • June 3, 1959
    ...disallowance of a claim so long as a cause remains under its control and irrespective of any time for appeal. See Wright v. Board of Public Instruction, 5 Cir., 142 F.2d 577; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. One other consideration motiv......
  • Matter of Conklin's, Inc., Bankruptcy No. 79-00540.
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
    • September 16, 1981
    ...without such a ten day limitation. In re Minskoff-Dorman Co., 444 F.2d 516 (9th Cir. 1971) (per curiam); Wright v. Board of Public Instruction, 142 F.2d 577 (5th Cir. 1944), cert. denied, 326 U.S. 737, 66 S.Ct. 47, 90 L.Ed. 440 (1945); In re Jayrose Millinery Co., 19 F.Supp. 1013 (S.D.N.Y.)......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT