160 F. 212 | N.D. Ala. | 1908
In order to present a proper consideration of the issues involved in the matters here presented to the court, a brief statement of the facts and pleadings connected with this matter should be here referred to.
On the 30th day of October, 1907, the receivers Chandler and Thompson filed with this court a report in writing calling the attention of the court to the fact that Edgar E. Adler was not acting in harmony with them, to the end that the best results might be obtained for the benefit of the property intrusted to their care. The court had previously learned from Edgar L. Adler, through a teleg'ram from him, and in face of the fact that the decree of the court had required that there should be a joint bond of all the receivers in the sum of $300,-000, that he had determined to make his bond separate and distinct
There can be no question that in such cases as this, where it is shown that the appointment of a receiver or trustee in bankruptcy is brought about by active interference and procurement of the bankrupt, the appointment of the same will be set aside on proper petition and showing to the court, it matters not how high the character or capacity of the receiver or trustee may be who is so attempted to be procured by the bankrupt. As is said by Rochren, District judge, in the case of In re Hanson (D. C.) 156 Fed. 717:
“It Is well settled by all tlie authorities that the trustee represents the creditors, and not the bankrupt, in the administration of the estate; and that it is improper that the bankrupt shall actively interfere with the matter of his selection and appointment; and that if he does interfere, and the person aided by him is appointed by votes procured by such interference, the appointment should for that reason be disapproved. In re McGill. 106 Fed. 57, 45 C. C. A. 218; In re Rekersdres (D. C.) 108 Fed. 206; In re Henschel (D. C.) 109 Fed. 861.”
What is said here as to the application of this principle to trustees must of course apply with much more force to receivers, for whom the court alone is responsible. Many cases to the same effect might be cited, and I have found none contrary to the principle announced in the Hanson Case, supra. The rule is based on sound reason, and is a salutary one. It often becomes the duty of the receiver directly to antagonize the bankrupt by efforts to discover secreted assets. Surely, then, there should be no color of basis for any suspicion of partiality or sense of obligation on the part of the receiver toward the bankrupt. While this is undoubtedly the la.w, and the contention made would have authorized the court to entirely disregard the request by the first petitioning creditors, as to the receivers Messrs. Adler, yet it is not sufficient cause to justify a setting aside of their petition at his time. The action of this court in disregarding in part their request as to receivers and in appointing three other receivers, who are entirely disinterested, purged those proceedings of