186 F. 578 | S.D. Ala. | 1911
It appears from the record that about the 1st of August, 1910, a bill was filed in the chancery court of Mobile •by McMillan & Grayson, representing one H. E. Chapman, who- was a stockholder in the insolvent corporation, Standard Fuller’s Earth
It appears that the chancery court at Mobile on January 23, 1911, made an order allowing said McMillan & Grayson, solicitors for complainant in the cause in that court, a fee of $1,500, declaring it to be a reasonable and proper allowance to them, and authorizing and instructing tlie receiver in the cause to pay the same and the cost of tlie cause remaining unpaid after applying the funds in the hands of the register of the court deposited as security for the costs, the payment to be made out of any funds available for that purpose. It was further ordered by that court that the receiver and his bondsman, after the payment of these fees and the costs of the cause, be and are relieved and dismissed from all further accounting of his administration as such receiver. And the cause was ordered to be dropped from the trial docket of that court. It further appears that McMillan & Grayson were requested to represent the defendant company in the state court proceedings by one H. A. Auer, an attorney who represented the company and who was also its secretary, and, when'the receiver was appointed, they also performed services as attorneys for him. The treasurer and general manager of tlie company was appointed receiver.
In Re Peter Paul Book Co. (D. C.) 104 Fed. 786, the court held that no allowance can be made by a court of bankruptcy to an assignee under a general assignment for services rendered as custodian of the property prior to the filing of the petition in bankruptcy against the assignor, even though such services appear to have been for the benefit of the general creditors. The court, however, said the bankruptcy court is authorized to make an allowance for services rendered in preserving the estate subsequent to filing the petition. In Re Rogers, 116 Fed. 435, the court said:
“The federal court will decline to recognize the authority of the state court to incumber assets of a bankrupt for the fees and expenses of its officers entered after the proceedings therein were suspended by the bankruptcy proceedings. * » * If the assets are delivered to the trustee by the receiver of the state court, this court will consider any application for compensation which may be made by officers of the state court, and, if allowable, will grant suitable compensation.”
In the case of Abbott v. Summers (D. C.) 116 Fed. 687, a debtor made a- deed of trust to one Summers for the benefit of creditors. About a month thereafter on an involuntary petition filed by creditors the debtor was adjudicated a bankrupt. In due time Abbott was elected trustee of the estate of the bankrupt. He filed a petition in the bankruptcy court alleging that said deed of trust was in effect a
In the case of Wilbur v. Watson in the United States District Court for the District of Rhode Island, 111 Fed. 493, the court held that:
“Assignees under a general assignment, which was of itself an act of bankruptcy. and constructively fraudulent and in violation of the bankruptcy act, are not entitled to compensation from the estate for their services rendered prior to tile filing of petition in bankruptcy against, the assignor, and they cannot retain any sum as such compensation from the proceeds of property-in their hands.”
“Proceedings ,in state courts under state insolvent laws are as against proceedings under the bankrupt act coram non judice. Such proceedings have no validity, no more than have proceedings in a state court when once a cause has been properly removed therefrom into a federal court.” in re Curtis (D. C.) 91 Fed. 741; Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87. A claim for pro
But the court said:
“We are not prepared to go further than to allow compensation for services which were beneficial to the estate. Beyond that point we must throw the risk of his conduct on the assignee, as he was chargeable with knowledge of what might happen.” 190 U. S. 539, 23 Sup. Ct. 713, 47 L. Ed. 1165.
I can perceive no difference in the application of theorule declared in Randolph v. Scruggs, 190 U. S., 23 Sup. Ct., 47 L. Ed., supra, and other authorities, to the case of a general assignment and to a proceeding in a state court instituted by a stockholder in an insolvent corporation against said corporation, praying an administration and winding up of said corporation, and obtaining the appointment of the treasurer and general manager of the corporation as receiver in the cause. The bankruptcy jurisdiction, when properly invoked, supersedes the prior proceedings in the state court for the winding up of said estate, as to which the jurisdiction is not concurrent. In re Zier & Co., Wilbur & Watson, and other authorities, supra. While the application to a state court by a corporation for a dissolution and the appointment of a receiver of its property is not an act of bankruptcy, and it cannot be adjudged bankrupt on that ground, the general rules of law for the administration of the bankrupt estate are alike applicable, whether the estate be administered and settled by an assignee under a deed of assignment or by the bankruptcy court.