174 F. 202 | D.N.J. | 1909
At the first meeting of the creditors of the bankrupt, in April, 1908, John W. Dickinson was elected trustee, and a resolution was adopted by the creditors authorizing the trustee to operate and continue the business of the bankrupt for the period of three months. On May 5, 1908, the referee, on the application of the trustee, and without notice to the creditors„made an order allowing the trustee a salary of $100 per week for carrying on the business. He carried on the business, under what authority does not appear, until February 2, 1909, when another meeting of creditors, pursuant to due notice, was held. At this meeting the creditors resolved “that the business be continued by the trustee for another year,” and also “that the trustee’s conduct of said business to date be in all respects approved.” None of these proceedings were objected to by Ward & Gow, the assignors of the present petitioner. The claim of Ward & Gow was assigned to the petitioner, who is William S. Cox, on February 24, 1909. Cox moved, before the referee, on March 8, 1909, that the order of May 5, 1908, allowing the trustee a salary of $100 per week, be vacated for want of jurisdiction on the part of the referee to make it, and for failure to observe the provisions of General Order No. 23.
The order refusing to entertain the motion to vacate the order of May 5th is reversed, and the order must be returned to the referee, with instructions to entertain the motion to vacate and proceed in accordance with the views above expressed. The doctrine of laches, which is insisted on by counsel for the trustee, is not applicable to a motion to vacate an order made without jurisdiction, especially where no rights have become vested under the order sought to be vacated. 1 Rem. on Bankruptcy, p. 277.
The second petition of review brings up an order of March 8, 1909, by which the referee refused to entertain a motion to vacate an order of April 21, 1908, allowing certain creditors set-offs by way of trade dividends. It may be that the order of April 24th ought not to be vacated; but, as the motion is based on alleged want of jurisdiction to make the order, it should have been entertained and disposed of on its merits.
This order, too, is therefore reversed, and the record must be returned to the referee, with instructions to hear the motion and dispose of it as the referee may think justice and the law require.
89 Fed. xi, 32 C. C. A. xxvi.