385 F.2d 789 | 5th Cir. | 1967
Lead Opinion
This bankruptcy case involves a novel question as to the power of a district court sitting in bankruptcy to enter a nunc pro tunc order which retroactively adjudicated the appellant a bankrupt. The appellant, Angus G. Wynne, Jr., was adjudged a bankrupt in the United States District Court for the Northern District of Texas on November 24, 1964, pursuant to the second involuntary petition in bankruptcy filed by three of the appellant’s creditors. The first petition filed by the same creditors on September 3, 1964, was dismissed on November 19, 1964.
The first involuntary petition in bankruptcy was filed on September 3,1964, by Watermann-Lider Corp., Sidney Wand d/b/a Modern Frosted Foods Co., and Edward Boker, Inc., three creditors of the appellant, alleging that the appellant was insolvent and that certain transfers made within four months prior to the date the petition was filed constituted an act of bankruptcy; After securing an extension of time in which to plead,
The transfers which the creditors alleged constituted an act of bankruptcy were made by Wynne-Compass Fair, Inc., a joint venture in which Wynne was a member, in June and July of 1964 to Embassy Grocery Corp. Wynne-Compass Fair, Inc. was organized by the appellant Wynne and Compass Fair, Inc., a New York corporation, to operate the Texas
After the September 3 petition was filed, the creditors sought to take the deposition of the appellant. They tried unsuccessfully to obtain the appellant’s consent to take the deposition and subsequently notice was given pursuant to the F.R.Civ.P. to take the appellant’s deposition on October 23. This attempt to compel discovery irked the appellant’s attorneys and for some reason no deposition was taken.
On that same day, November 19, 1964, a motion to dismiss, carefully couched in terms of a dismissal on the merits, was submitted to the district court. After a short conference with the attorneys, during which counsel for the creditors advised the court that they would pursue the bankruptcy matter further, the court granted the motion. The following day, November 20, 1964, a second involuntary petition in bankruptcy was filed by the same creditors. The bankrupt admitted his inability to pay his debts, and he was adjudged a bankrupt on November 24, 1964.
The motion which gave rise to the controversy before us was filed on February 4, 1965 by the trustee in bankruptcy and three other creditors, Flagstaff Foods Corp., L & M Fashions, Inc., and Factory Sales Corp. The motion prayed to have the order dismissing the original petition set aside as improvidently granted, the two proceedings consolidated, and the appellant adjudged a bankrupt as of the date the original petition in bankruptcy was filed, September 3, 1964. The district court referred the case to the referee in bankruptcy as a Special Master to hold hearings and make a recommendation to the court. The referee concluded, after a full hearing at which evidence was presented by both parties, that the order dismissing the September 3 petition should be deemed to have been secured by consent. Since no notice was given to creditors as required by § 59(g) of the Bankruptcy Act, 11 U.S.C. § 95(g) (1964), he further recommended that the order be set aside as improvidently granted. He also found that the dismissal was the result of a hard fought legal battle and was not the product of collusion. In addition, he recommended that the proceedings be consolidated, and that the appellant be adjudged a bankrupt as of September 3, 1964. The district court adopted the referee’s report and entered a judgment in accordance therewith. The appellant’s motion for a new trial and/or rehearing was denied, and this appeal was taken.
The appellant argues that the district court lacked the power to set aside the order dismissing the September 3 petition because the dismissal was on the merits. As such it was a final judgment which could not be attacked by third parties. In essence, he asserts that the dismissal was entered pursuant to § 18(d) of the Bankruptcy Act, 11 U.S.C. § 41(d) (1964), and not pursuant to § 59(g), 11
Section 59(g) provides that a petition in bankruptcy shall not be dismissed by consent or for want of prosecution until after notice has been given to other creditors.
As the appellant correctly observes, the notice provisions of § 59(g) of the Bankruptcy Act were designed to prevent injurious settlements and to protect the estate for creditors other than those who brought the petition. If such other creditors desired the bankruptcy proceedings continued, they could intervene upon notice of the pending dismissal under § 59(f), 11 U.S.C. § 95(f), and prosecute the matter further. By intervening they would preserve the date of bankruptcy established by the original petition. While a collusive settlement between the parties is clearly one of the evils sought to be prevented by the notice requirement, it is not the only harm with which the section is concerned. The statute requires notice before a petition may be dismissed by consent, for want of prosecution, or upon application of the petitioner or petitioners. It applies where both voluntary and involuntary petitions in bankruptcy are involved. If the only evil threatened was that of a dismissal obtained through collusion, the statute would have been much simpler and surely would not apply where a voluntary petition was involved. By employing the multifarious approach used, it is clear that the statute is concerned with evils other than collusive settlements and that notice is required in situations other than where collusion was established or alleged. Thus, to effectuate the purpose of the notice provisions and protect the rights of creditors who have relied upon the pending petition, be it voluntary or involuntary, the section is to be given a liberal construction.
That is not to say that all dismissals require notice. It is well established that notice is not required where the matter has been submitted to the
In the Chalfen case, supra, the court was presented with a unique situation not unlike the one before us. The parties went to trial, but at trial the petitioning creditors failed to produce any evidence in support of their petition. The alleged bankrupt moved to have the petition dismissed without notice to creditors. The court held that if the petitioner’s failure to adduce any - evidence resulted from its inability to do so and not from an agreement or collusion between the parties, the movant was entitled to have the petition dismissed without notice to creditors. It therefore remanded the case to the referee to hold hearings and determine whether the failure to adduce evidence resulted from an agreement or collusion. The appellant asserts that Chalfen stands for the proposition that collusion is required before the notice provisions of § 59(g) are applicable. We do not agree. The court in Chalfen observed that “If upon a mere failure of the petitioners to produce evidence at a hearing, an order of dismissal may be entered up without notice to other creditors, an easy way will be open to evade the wholesome provisions of section 59 (g) and to trade upon petitions in bankruptcy.” 223 F. at 381. This concern for the preservation of the estate in the interest of creditors not a party to the petition comports with the purpose of the notice provisions. It would therefore be inconsistent and unduly restrictive to read the opinion so as to require collusion in order for notice to issue. The necessity of permitting creditors who have relied on the pending suit to intervene exists whether the dismissal is procured through collusion or by agreement, and those interests are better served by requiring notice whether the dismissal is obtained through an agreement or collusion among the parties.
The appellant argues that this construction produces the illogical result of requiring a full formal hearing, complete with witnesses and documentary proof, when it is clear that the allegations of the petition can not be proved. There may be some merit to this argument, but contrary to the appellant’s contention we are not presented with a case which raises that issue. The appellant asserts that the creditors’ decision not to oppose the motion to dismiss was based on their realization that they could not prove that the transfers alleged in the petition as acts of bankruptcy were made by the appellant or were chargeable to him as an
By postponing the date of adjudication until November 20, the appellant had insulated several substantial transfers which otherwise could have been attacked by the trustee as voidable preferences. The appellant’s delay in submitting to the taking of his deposition
However, merely because the order was subject to being set aside does not mean that the court could relate the November 24 adjudication back to September 3, or that it could, on the basis of the record before it, adjudge the appellant a bankrupt as of September 3. When an order is set aside as improvidently granted, the prior status of the case is restored and the situation is the same as though the order or judgment had never been entered. In re Rochester Sanitarium & Baths Co., 222 F. 22 (2 Cir. 1915); Aetna Life Ins. Co. v. Board of County Com’rs of Hamilton County, 79 F. 575 (8 Cir. 1897). Thus, when the court set aside the order dismissing the September 3 petition, the proceedings had progressed to the- stage where there was a controverted involuntary petition in bankruptcy and a demand for a jury trial. Normally, at that point a case is ready for trial, and the appellant argues that the court should have so proceeded and should not have adjudged him a bankrupt as of September 3.
The appellees seek to justify the retroactive adjudication on the broad equity powers of a bankruptcy court and the need, in the instant case, to protect the bankrupt’s estate for the benefit of the creditors from the alleged depletive conduct of the appellant. The referee con-
We fail to see how reliance on the acknowledged equity powers
But more importantly, the district court denied the appellant his right to a jury trial by adjudging him a bankrupt as of September 3. The right to a jury trial on the issues of insolvency and the commission of an act of bankruptcy are specifically conferred in proceedings commenced by an involuntary petition in bankruptcy by § 19(a) of the Bankruptcy Act, 11 U.S.C. § 42(a) (1964). If a demand for a jury is timely made, that right is absolute. Elliott v. Toeppner, 187 U.S. 324, 23 S.Ct. 133, 47 L.Ed. 200 (1902); Newton v. Glenn, 149 F.2d 879 (5 Cir. 1945). The appellant requested a jury trial in his answer and, in addition, filed a separate demand for a jury trial at the same time. Such demands were timely made under section 19 and rendered his right to a jury determination of the two controverted issues inviolate. Recognizing the demand of the appellant for a jury trial, the Referee returned the proceedings to the district court on October 12, 1964. The appellants’ appearance at the hearing on the motion to dismiss did not constitute a waiver of that right, cf. William Edwards Co. v. La Dow, 230 F. 378 (6 Cir. 1916), nor did his subsequent consent to the November 24 adjudication waive that right with respect to the issues raised by the September 3 petition. In re Louisell
The appellees contend that even if the right to a jury trial was not waived by the appellant, the error was harmless as the only issues submissible to a jury are resolvable against the appellant as a matter of law on the record before us. As indicated earlier, a jury trial in bankruptcy is limited to the insolvency of the debtor and to the commission of an act of bankruptcy. The appellees assert that the appellant’s acknowledgment that he was unable to pay his debts on November 20 and testimony during the hearing on the motion to set aside the dismissal that he was insolvent before September 3 are sufficient to support a finding of insolvency as of September 3. Further, they contend that since it is admitted that Wynne-Compass Fair, Inc. made the payments alleged in the September 3 petition to be the act of bankruptcy, the sole remaining issue is whether they are chargeable to the appellant, a question of law.
Although there may be some evidence in the record that the appellant was insolvent as of September 3, we do not think that it is sufficient for the issue to be resolved on the basis of the record before us, and without submitting the matter to a jury. The appellant’s admission of his inability to pay his debts as of November 20 does not amount to an admission of insolvency as of September 3.
Finally, the appellees’ motion to strike the intervention of the First National Bank in Dallas is granted. The Bank sought to intervene while this ease was pending on appeal, and was granted that right subject to further orders of the Court. It seems clear that under the statute a creditor has no interest in the date of adjudication and may not attack an adjudication. Commercial Credit Corp. v. Skutt, 341 F.2d 177 (8 Cir. 1965); Citizens Nat’l Bank v. Speer, 202 F.2d 491 (5 Cir. 1953). The Bank’s brief is accepted and was considered as an amicus curiae brief.
Affirmed in part; reversed and remanded in part.
. In view of the fact that the proceedings extended over a substantial period of time, the following chronology may be helpful:
Sept. 3, 1964 First petition in bankruptcy filed. Case No. Bk-3-281.
Nov. 19, 1964 First petition in bankruptcy filed. Case No. BK-3-281.
Nov. 20, 1964 Second petition in bankruptcy filed (same creditors). Case
No. BK-3-328. Wynne admitted insolvency.
Nov. 24, 1964 Wynne adjudicated a bankrupt in case No. BK-3-328. Consented to the adjudication.
Feb. 4, 1965 Motion filed by trustee and three other creditors to:
1) vacate order dismissing petition in BK-3-281.
2) consolidate cases Nos. BK-3-281 and BK-3-328, and
3) adjudicate Wynne a bankrupt as of September 3, 1964.
Aug. 5, 1965 Motion of February 4 granted.
Aug. 10, 1965 Motion for new trial filed by Wynne.
Dec. 13, 1965 Motion for new trial denied, effective as of December 2, 1965.
. The referee in bankruptcy found on the hearing held in conjunction with the motion to set aside the dismissal that the appellant’s motion for an extension of time was made for purposes of delay, and concluded that had he known of the subsequent developments, he would not have granted the extension.
. In his report the Referee noted that the attorney who filed the first petition testified that he “did not push hard enough.”
. In pertinent part the section provides:
“A voluntary or involuntary petition shall not be dismissed upon application of the petitioner or petitioners, or for want of prosecution, or by consent of parties, until after notice to the creditors as provided in section 94 of this title * * *.” 52 Stat. 868 (1938), 11 U.S.C. § 95(g) (1964).
. In his report to the district court the referee commented as follows:
“As I see it the presentation to you of the order of dismissal represented no collusion but was the outcome of a hard fought, skillfully waged battle between two sets of attorneys. The attorneys for Wynne were seeking to insulate from attack as voidable preferences or fraudulent transfers certain transfers amounting perhaps to more than a million dollars which had been made by Wynne within four months of the date of filing the first involuntary petition. The purpose of the attorneys for the petitioning creditors was to have Wynne adjudicated in the Dallas court with the hope and desire that they would participate in the proceedings as attorneys.”
. Were the petitioning creditors the only persons affected by the dismissal, we would not be so concerned to protect them from their own errors of judgment. However, a bankruptcy proceeding involves more than the interests of the immediate creditors who commenced the proceeding, and it is the rights of those creditors not a party to the original proceeding that the section was intended to protect, and in whose interest it should be construed. Cf. In re New Chattanooga Hardware Co., 190 F. 241 (E.D. Tenn.1911); In re Fuller, 9 F.2d 553 (2 Cir. 1925).
. As noted earlier no deposition was ever taken, perhaps because counsel for the petitioning creditors in the September 3 petition did not “push hard enough.”
. With respect to the equity powers of a bankruptcy court, see Wayne United Gas Co. v. Owens Illinois Co., 300 U.S. 131, 57 S.Ct. 382, 81 L.Ed. 557 (1937).
. The appellees also argue that since the appellant admitted he was insolvent and permitted himself to be adjudicated, he has no standing to prosecute this appeal. We believe this argument is without merit. As long as the bankrupt was solvent he had a right to prefer those creditors he chose. Dworsky v. Alanjay Bias Binding Co., 182 F.2d 803, 805 (2 Cir. 1950). As such, he has a vital interest in the date of his adjudication, and therefore has standing' to appeal. Further, since creditors may no longer contest an adjudication, Citizens Nat. Bank v. Speer, 202 F.2d 491 (5 Cir. 1953), the bankrupt is of necessity the only person who can obtain review of proceedings which result in his adjudication.
. The Referee in his report as Special Master recognized the value of a jury trial to the appellant. We quote from that report:
“At the meeting on November 19 the attorneys for the petitioning creditors faced a dilemma. They could assent to the dismissal of the first petition and secure an immediate, uncontested adjudication upon the filing of a second involuntary petition. On the other hand they could face not only the delay incident to a jury trial but there was a strong possibility that they might not be able to sustain their petition in a contested, trial. They suspected that transfers had been made which would be insulated from attack in bankruptcy proceedings under a new petition but they did not have information on this subject and could not get it. They decided on the first alternative.” (Emphasis added)
. The appellees refer us to Francis v. McNeal, 228 U.S. 695, 33 S.Ct. 701, 57 D.Ed. 1029 (1913) in support of their contention that the debts of a joint venture are the debts of its members. But see Liberty Nat’l Bank. v. Bear, 276 U.S. 215, 224-225, 48 S.Ct. 252, 72 L.Ed. 536, 540 (1928).
Rehearing
ON PETITION FOR REHEARING
The appellees have filed a petition for rehearing and a petition for rehearing before the Court en banc urgently insisting that there is a conflict between our decision in this case and the decision of another panel of this court in the case of Harold C. Abramson v. Boedeker, 379 F.2d 741 (5 Cir. 1967). We have given careful consideration to such contentions but are unable to agree with them. There are a number of factual distinctions involved and the controlling legal principles are essentially different.
In our decision in Wynne we were dealing primarily with the fundamental right of every alleged bankrupt in cases where an involuntary petition has been filed to demand and receive a trial by jury. In Abramson, a creditor of the bankrupt attacked the date of adjudication in a collateral proceeding brought by the Trustee to set aside as voidable preferences certain transfers made within four months of the date of adjudication. As clearly stated in Abramson (and as is evident from the opinion in Wynne), “The key is the defensive position taken by the debtor-alleged-bankrupt.” As pointed out in Abramson this fact is true, “Since the creditor cannot oppose the petition directly, he ought not to have the right to gain the same benefit through a collateral attack.”
The Abramson decision reserved judgment on a vital question which the court was required to decide in Wynne and in doing so used the following language:
“Whatever might have been the case had the debtor persisted in denial of bankruptcy, when the debtor here withdrew his answer and acquiesced in adjudication by default, the date of bankruptcy was fixed as of the date of the original petition. The District Court was in error in finding to the contrary.”
This reservation of judgment was no doubt based upon the fact that the bankrupt formally withdrew its defense and an adjudication by agreement and default was entered. In Wynne the bankrupt contested the petition from the beginning and continued to contest throughout the proceedings.
As to the doctrine of relation-back the Abramson opinion takes note of the fact that although the parties and the court persisted in discussing the problems in terms of such doctrine* “the answer cannot be found there.” In addition, Abram-son holds that the original allegations of the petition, couched in general terms, may be clarified by an amendment specifying the acts of bankruptcy in detail. In Wynne we were dealing with entirely new and different alleged acts of bankruptcy.
We have considered all of the contentions of the appellees and find them without merit. Moreover, we consider it unnecessary to point out other factual and legal distinctions apparent from a careful analysis of the .two cases.
The Petition for Rehearing is denied and no member of this panel or Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25(a), sub-par. (b), the Petition for Rehearing En Banc is denied.
