248 F. 246 | 6th Cir. | 1918
January 26, 1916, involuntary proceedings in bankruptcy were instituted against the firm of McDaniel & Co. The partnership was adjudicated bankrupt and a trustee appointed over the partnership estate. Adjudication as to the individual members of the firm was not asked and was not had. About four months later involuntary proceedings were begun against Mitchell, a member of the partnership,' and he was adjudicated a bankrupt. At a creditors’ meeting, in the matter of Mitchell’s individual estate, held in the following January, the referee denied the motion of Mitchell’s creditors to proceed to elect a trustee for his estate, and ordered the consolidation of the individual estate with that of the partnership, appointed the trustee of the partnership estate trustee of the individual estate, and directed the turning over of the latter to such trustee. This order was reversed by the District Judge. Meanwhile, the administration of the partnership estate had proceeded, and before the making of the order just referred to a small dividend had been declared. The referee’s action, in connection with the dividend order, in awarding several hundred dollars compensation to the receiver and to the attorneys for petitioning creditors, for tire trustee, and for the receiver, was reversed by the District Judge. This proceeding is brought by the trustee, under section 24b of the Bankruptcy Act, to review both these orders of reversal.
As to the other petition for review the criticism is that it was not filed within ten days after the order sought to be reviewed. But there is no suggestion of local rule requiring the petition to be presented within ten days, and the District Judge expressly asserts the absence of such rule. In fact, however, the petition was filed on the tenth day after the entry of the order complained of; and the date of the entry, not the date the order bears, governs.
“There can be no question, that the individual liabilities largely exceed the individual assets, so that there is nothing in the individual estate for partnership creditors.”
This conclusion of fact is binding upon us, for in proceedings to revise under section 24b of the Bankruptcy Act we are limited to a review in matter of law, and cannot determine questions of fact involved in the finding or order sought to be reviewed, where there is any evidence to support them. Duryea Power Co. v. Sternbergh, 218 U. S. 299, 302, 31 Sup. Ct. 25, 54 L. Ed. 1047; In re Stewart (C. C. A. 6) 179 Fed. 222, 228, 102 C. C. A. 348; In re Holden (C. C. A. 6) 203 Fed. 229, 233, 121 C. C. A. 435. The record is not such as to permit the assumption of lack of evidence to support this statement. True, the opinion is not in form a finding of facts, such as contemplated by subdivision 2 of our rule 34 (202 Fed. xxi, 118 C. C. A. xxi); but petitioner asked no finding of facts, his petition to revise does not assert the absence of testimony or admission supporting the statement of the District Judge, nor is error in that respect asserted therein. The copy of bill in equity to set aside conveyances, accompanying the trustee’s application to set aside the District Judge’s order of reversal, is not enough to controvert the judge’s conclusion of fact. The trustee, under a petition to revise in matter of law only, is not thus in position to complain of the absence of formal finding of facts.
“Neither the bankrupt partnership nor its trustee can have any possible interest in the separate estate of any of the bankrupt partners, except only for the benefit of the partnership creditors.”
v We think, therefore,, that the bankruptcy court is given discretionary power to appoint separate trustees for the estates of a bankrupt partnership and of the individual partners, but that such power should be exercised only in case of special and peculiar necessity for the protection of rights which cannot be adequately protected by a common trustee dr by creditors directly. In re Currie (D. C.) 197 Fed. 1012. In this case, in view of its history and accepting, as we must, Judge Cochran’s statement that the assets of the individual estate are insufficient to meet the debts of that estate, and it thus appearing that partnership creditors can have no- possible concern with the administration of the individual estate, we think the bankruptcy court had discre
“According to the exceptions and petition of the petitioners here ÍJIOO was allowed them for their services to the petitioning creditors and ?300 for their services to the receiver.”
By reason of the facts that all the allowances were “lump sums,” that it did not appear whether the allowance to the receiver was within the statute, that it was impossible to determine what legal services were rendered to the receiver and what to the trustee, to justify their allowance, the court found itself in no position “to form an opinion other than to say that the allowances to the attorneys appeared to be very large,” being “more than 30 per cent, of the net estate in the hands of the trustee for distribution” — the judge stating, however, that if but $100 was allowed for attorney’s fees to the petitioning creditors “the probability is that the allowance on [that] account is not out of the way.”
The order of allowance was “accordingly reversed and re-referred to the referee for further consideration.” The District Judge has thus not finally passed upon the award, and his order, in view of the considerations stated by him, was entirely justified.
The orders of the District Court are affirmed.