239 F. 155 | E.D. Mo. | 1917
On the 6th of January, 1917, the Hargadine-McKittrick Dry Goods Company, a corporation, filed in this court a voluntary petition in bankruptcy, and at the same time presented an application for the appointment of a receiver to take charge of its assets. The following rule was made by Judge Adams when he was judge, to wit:
Rule 11: “Upon the entry of an order of adjudication in bankruptcy, unless otherwise directed by the court, the case shall be forthwith referred generally to the referee for the district in which the bankrupt has his principal place of business, resides, or has his domicile, and after such reference the referee is authorized to fix the time when, and place where, he will act upon matters arising in the case.”
The practice since the adoption of that rule has been that, upon the filing of a voluntary petition in bankruptcy, an order of adjudication was entered as a matter of course, and the proceeding immediately referred to the referee in bankruptcy. However, after the petition had been filed in this case and the order of adjudication entered, counsel who had been engaged in an action in the circuit court of the city of St. Louis against the petitioner herein and others, appeared on the same day and made objection to the adjudication, and 'asked to be heard in opposition thereto. The court, being willing to hear the objections, ordered the adjudication set aside and fixed a day for a full hearing. At the same time certain stockholders of the Hargadine-
At the hearing counsel were heard at great length, and briefs were filed by counsel representing both the Hargadine-McKittrick Dry Goods Company and the interveners, which show much industry, and learning. At that hearing and in the briefs submitted several important questions were pressed upon the court’s attention that must now be disposed of: (1) The right of stockholders to intervene herein for the purpose of resisting the petition in bankruptcy. (2) The right of the company to be adjudicated a bankrupt on a petition in due form and containing all necessary-' averments. (3) How far a court in bankruptcy is bound by a decree of a state court, and the right o.f a court in bankruptcy to take possession of and administer property already in the custody of a receiver appointed by a state court after an adjudication and decree entered, wherein the alleged or proposed bankrupt was a party. These questions have been considered and the court will now proceed to dispose of them.
Although, in the present posture of the case, no- formal defense to the petition is or can be entertained, the court has heard the suggestions made on behalf of certain stockholders in opposition to an adjudication of bankruptcy. As these grounds of objection have been presented by counsel in their briefs, and may be renewed upon a motion to vacate the adjudication, the court deems it proper to say that the objections urged appear to be untenable.
“That said Hargadine-McKittrick Dry Goods Company, its officers, directors, and agents, and the individual defendants, Thomas H. McICittriek, Hugh McKittrick, Walter McKittrick, Ralph MeKittriek, Charles C. English, Martin P. Donahoe, George B. Halliday, Robert McKittrick Jones, George M. Wright, and E. C. Simmons, be and they are hereby enjoined and restrained from interfering with the receiver in his taking and holding possession of the assets and properties of said company, from disposing or attempting to dispose in any way of any of said assets and properties, and from incumbering or embarrassing, or attempting to incumber or embarrass, or from doing any other act or thing to defeat or embarrass the receiver in the discharge of his duties herein.”
In the opinion of this court the decree of the state court cannot properly be so construed or applied as to affect the jurisdiction of this court or to impair the right of the bankrupt and its directors to file a voluntary petition in bankruptcy. It is not within the power of the state court to limit the operation of the Bankruptcy Act, or impair the jurisdiction of this court as a court of bankruptcy, by any form of order or injunction. If the rule were otherwise, any court of general jurisdiction could, in any given case, exclude a court of bankruptcy from the exercise of its lawful jurisdiction by merely forbidding a debtor party from invoking the jurisdiction of the court of bankruptcy, and such a principle would be manifestly inadmissible.
It is evident from the facts above stated that the state court had acquired jurisdiction over all the bankrupt’s property prior to the filing of the petition in bankruptcy, for the state court’s order appointing a receiver, etc., must be treated as having taken effect, by relation, from December 29, 1916, the date on which the court delivered its opinion and announced its findings, although its formal order was not actually reduced to writing and entered until January 8, 1917. Robinson v. Govers, 138 N. Y. 425, 34 N. E. 209; Rochester Water Co. v. Rochester, 84 App. Div. 71, 82 N. Y. Supp. 455.
The foregoing considerations constrain the court to conclude that prior to the commencement of this bankruptcy proceedings the circuit court of the city of St. Louis had acquired jurisdiction over the property of the bankrupt, that such jurisdiction can be in no way superseded or impaired by the present proceeding in bankruptcy, and for these reasons this'court is not justified 'in appointing a receiver. In view of all' the facts brought to its attention, this court cannot regard this case
In conformity to these views orders will be entered: (1) Denying the petition of Christian Zeitinger et al. to intervene herein for the purpose of opposing the voluntary petition in bankruptcy. (2) Adjudging the petitioner Hargadine-McKittrick Dry Goods Company bankrupt upon its voluntary petition. (3) Denying the application of the bankrupt for the appointment of a receiver.
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