198 F. 381 | 2d Cir. | 1912
Lead Opinion
(after stating the facts as above). We do not find in the record before us anything to show whether appellant did or did not have actual knowledge of the omnibus proceeding. Had all the statements of fact presented to us upon the oral argument been submitted to the district judge, with a positive statement that Sherwood had no knowledge of the pending omnibus proceeding, it is probable that he would have given appellant an opportunity to prove them, and, if proved, would have administered suitable relief. Certainly under the circumstances thus asserted it would be inequitable to turn his property over to creditors who have no title to it. But the record which has been certified, being a transcript of the record in the District Court, neither proves nor tenders sufficient to call for a determination of the application other or different from that reached in such court.
The order is affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in the opinion of the court. If the allegations of the opinion be .true, 31 shares of stock, worth $6,480 and owned by the petitioner,- are about to be divided among the creditors of the bankrupts. It is alleged in the petition that these shares were stolen from the petitioner, his signature forged to blank assignments and the certificates pledged as security with the firm of Ennis & Stoppani, the bankrupts, without the knowledge, consent or approval of the petitioner, who received his first accurate information concerning the transaction in December, 1910.
The sole reason for refusing the petitioner the right to reclaim his property was that he did not prove his title at the hearing before the referee in the so-called “omnibus proceeding,” notice of which was published in the New York Times. Whether or not he had actual notice of this proceeding does not appear.
Even if it be conceded that he was guilty of laches in this respect, it seems to me that he should be permitted to prove his title, if the property had been sold and divided without notice of his claim, a different situation would be presented. But the property is still in the hands of the trustee, and there can be no just ground of complaint if it be restored to its true owner. No one has been misled; no rights have been lost by the delay. I cannot avoid the conclusion that a great injustice may be done if this petitioner is denied the right to prove that the securities in question oelong to him. All he asks is a fair hearing on the merits.
To state the proposition bluntly, stolen property belonging to the petitioner is about to be divided among creditors who have no shadow of title to it if the petition states the truth. That the District Court, exercising in bankruptcy the powers of a court of equity, is, because of alleged laches, precluded even from hearing the proof, is a proposition to which I cannot assent.
I think the testimony should be taken, and if it appears that the property was stolen from the petitioner, it should be restored to him without delay.
