229 F. 677 | 5th Cir. | 1916
“This cause coming on this day to be further heard upon the motion of William T. Abbott to set aside and vacate the order adjudicating said Wauchula Manufacturing & Timber Company, a corporation, bankrupt, and for leave to defend said cause and to file an answer denying the insolvency of said respondent corporation, and each and every act of bankruptcy in the amended involuntary petition in bankruptcy alleged and set forth, and upon the notice of the said respondent corporation and the petitioning creditors to the said Abbott that they would refuse to enter into a hearing upon said motion unless the said William T. Abbott should present himself in court having with him all correspondence and telegrams that liad passed between him and Arthur 1’. Odlin, of the county of Do Soto, state of Iflorida, in reference to the transfer of certain lands mentioned in said motion from the said Odlin to the said Abbott; and thereupon Howard P. Macfarlane, attorney for William T. Abbott, did represent unto the court that the said William T. Abbott was a resident of Chicago, Ill., that he was not present in court, and*680 that he could not so present himself without suffering great inconvenience, but that he was ready and willing to answer any and all proper questions that might be put to him by interrogatories, that the said Arthur F. Odlin was there present in court, ready and willing to answer any and all questions held proper by said court with reference to said transfer by the said Odlin to the said Abbott, stating to the court that the said Odlin was in a position to be and was in fact better informed concerning the subject-matter of said motion and the transactions leading up to said transfer than the said William T. Abbott, and thereupon tendered the said Odlin for examination. Whereupon it is ordered, adjudged, and decreed that no action be taken in the matter of said motion, and that said motion be not entertained, until the said William T. Abbott shall present himself before this court to be questioned concerning the facts and circumstances leading up to the said transfer of said real estate.”
The action of the court evidenced by the order just quoted is presented for review by Abbott’s petition to superintend and revise.
It is apparent that Abbott had a substantial interest in securing the action by the court which his petition prayed for, in that an effect of the bankruptcy adjudication remaining in force would be a destruction of his title to land based upon a sale under an execution issued within four months prior to the filing of the petition in bankruptcy. He had an interest in the adjudication, whether it stood or fell. If it stood, his status was that of a creditor, as in that event he was the legal or equitable owner of the whole or a part of the demand represented by the judgment sought to be enforced by the vacated execution' sale. If it fell, his title to land was restored to life. In re McMurtrey & Smith (D. C.) 142 Fed. 853; In re Jacobson (D. C.) 181 Fed. 870. It is to be observed that the above-quoted order neither granted nor denied the leave sought to resist the bankruptcy petition. It simply postponed any action on the application until the applicant “shall present himself before this court to be questioned concerning the facts and circumstances leading up to the said transfer of said real estate.”
“A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including tbe bankrupt and bis wife, to appear in court * * * to be examined concerning tbe acts, conduct, or property of a bankrupt whose estate is in process of administration under tbis act.”
It was not suggested that an examination of Abbott was desired for the purpose intended to be accomplished by that provision, viz. the recovery of assets of the estate for distribution. It was made plain that the demand for Abbott’s attendance was conditioned upon the court’s granting him a hearing on his application to be permitted to put in issue the allegation of insolvency, which had been denied by the debtor and subsequently was admitted by it, and that no testimony from him was sought, except in the event of a hearing on that application and with reference to the issue of solvency or insolvency
The result of the order under review was to require Abbott, as a condition to his obtaining any hearing ^t all on his application, to incur the inconvenience and expense of a trip 'from Chicago, his place of residence, to Florida. The order left it altogether uncertain whether the making of that trip would have resulted in the opportunity being afforded of examining the applicant with reference to the question of solvency or insolvency, as there was no determination by the court to permit that issue to be revived. It is apparent that the burden which the-order put upon Abbott as a condition of granting him a hearing on his application was decidedly more onerous than any that could have been imposed upon the debtor with reference to a trial of an issue raised by it on the involuntary petition’s allegation of insolvency. Abbott was not given the opportunity of assuming the burden of proving the debtor’s solvency by failing to attend. Nothing alleged in the demand made that he be required to attend, or otherwise shown by the record, indicates that his personal presence was necessary to enable the court advisedly to determine the preliminary question of allowing or disallowing the sought for revival of the defense which the debtor had abandoned. To say the least, the burdensome'condition stated in the order was prematurely imposed; it not' having been determined that there was to be a trial of the issue sought to be revived and with reference to which alone it can be supposed that Abbott’s testimony was desired.
The conclusion is that the circumstances did not warrant the order presented for review. A reversal of it is ordered.