173 F.2d 738 | 2d Cir. | 1949
The appellant, Dickinson, and the appel-lees, Burnham and others, constituting the “Rinke Agency Subscribers,” move to dismiss the appeal of the Petroleum Conversion Corporation from a judgment of the district court entered August third, 1948. The chief question is whether the corporation could have appealed from an earlier judgment, entered on April tenth, 1947, which dismissed a counterclaim filed by it after it had been allowed to intervene in the action; or whether it could appeal only from the judgment of 1948. Other questions, relating to the formal regularity of the appeal and to an extension of the time within which to file the record and brief, we reserve for the moment. Some outline of the action and what has gone before is necessary to an understanding of the motion. Dickinson sued Lloyd and others to impress a lien upon certain shares of the Petroleum Conversion Corporation, not then a party to the action; the district judge dismissed the complaint, and we reversed the judgment on January nineteenth, 1943.
The cause was tried a second time in 1944 and 1945, and, after long delay, an interlocutory judgment was finally entered on April tenth, 1947, as follows:
(1) Dismissing the complaint of Dickinson in toto;
(2) Declaring that the Petroleum Conversion Corporation had no right to 244,-041 shares of its stock, then in possession of the court, and directing it to issue new certificates for those shares to the shareholders of another corporation, but that any shares not so distributed should be transferred to others as might be later decreed ;
(3) Declaring that of 20,796 shares of its stock in possession of Lloyd’s administrator, 8,200 should be delivered to the Petroleum Conversion Corporation, but that its claim to the remaining 12,596 shares be dismissed;
(4) Dismissing its claim for a rescission of a contract between itself and the plaintiff and his son;
(5) Dismissing its claim against Dickinson and Lloyd for the sum of $87,310.28;
(7) Granting recovery of $174,620.56 with interest against Dickinson and Lloyd’s administrator in favor of the “Rinke Agency Subscribers,” and providing a concourse of all these, by which their several claims could be liquidated and the amounts ascertained to which each was entitled out of the sum mentioned.
On August third, 1948, after appropriate hearings, the district court entered a final judgment, fixing the several claims of all the “Rinke Agency Subscribers” who had proved their claims, and barring the claims of those who had not. Thus, it appears that the judgment of April tenth, 1947, finally disposed of the counterclaim of the Petroleum Conversion Corporation, as well as of any claim against that corporation by any of the parties; there remained, so far as that corporation was concerned, only the issue of those of its shares to others which the judgment directed — merely ministerial acts on any theory. That judgment was not final, however, as to the “Rinke Agency Subscribers,” and became so only by the judgment entered on August third, 1948.
Had the petition of the Petroleum Conversion Corporation to intervene been denied, the denial would have been appeal-able, because in that event the petitioner would not have been “at liberty to assert and protect” its interests “in some more appropriate proceeding.”
In the view of all members of the court, as it is now constituted, this should make no difference for the whole counterclaim of the Petroleum Conversion Corporation had been finally disposed of on April tenth, 1947; and as to it the action' was at an end as much as though it had been denied the right to intervene at all; indeed, the judgment was more final, so to say, because, unlike the denial of a petition to intervene, it was a bar to any effort to relitigate the claims determined. On the other hand, we cannot find any tenable distinction between the situation at bar and that which was before the court in Clark v. Taylor,
The formal defects of the appeal need not detain us long. The Petroleum Conversion Corporation was adjudicated a bankrupt in the District of Delaware on August eighth, 1948, and one, Duffy, was appointed its temporary receiver. On September first, 1948, a notice of appeal was filed in the office of the clerk of the Southern District of New York, signed by the attorney before bankruptcy of the Petroleum Conversion Corporation. This notice purported to ask a review of the provisions of the judgment of August third, 1948, which dismissed the counterclaim of the Petroleum Conversion Corporation; but there were no such provisions in that judgment; they were in the judgment of April tenth, 1947. Perhaps the appellant thought that the judgment of August third, 1948, reaffirmed the earlier judgment; but at any rate the intent was perfectly manifest and that must control. The notice of appeal described Duffy, the temporary receiver, as the appellant, but declared that he was appealing in behalf of the Petroleum Conversion Corporation. Nothing further was done until January nineteenth, 1949, when at the request of Duffy, who had by then become the trustee, the referee called a meeting of creditors in Wilmington for February fourth to consider whether the appeal should be prosecuted by the trustee. The trustee recommended against this course, and, since at the creditors’ meeting no one objected to his decision, the referee approved the recommendation. However, he also approved another recommendation of the trustee: i. e., that the appeal might be prosecuted by individual creditors at their own expense, and an order to that effect was entered on February ninth. In accordance with this the referee on the same day passed a second order, allowing four named creditors to prosecute the appeal on behalf of the Petroleum Conversion Corporation and of its trustee, without cost to the bankrupt estate.
A bankrupt even after adjudication may commence a suit in his name before the appointment of a trustee,
Motions to dismiss denied.
Motion to extend the time to file the record and brief extended to August first, 1949.
Dickinson v. Rinke, 2 Cir., 132 F.2d 805.
Brotherhood of Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646; Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 508, 665, 61 S.Ct. 666, 85 L.Ed. 975.
2 Cir., 163 F.2d 940.
Johnson v. Collier, 222 U.S. 538, 32 S.Ct. 104, 56 L.Ed. 306; Daneiger v. Smith, 276 U.S. 542, 48 S.Ct. 344, 72 L. Ed. 691; Meyer v. Fleming, 327 U.S. 161, 165-168, 66 S.Ct. 382, 90 L.Ed. 593; Paradise v. Vogtlandische Maschinen-Fabrik, 3 Cir., 99 F.2d 53.