*2
Botts,
Decreed,
Adjudged
Ramsaur, Guy
“Ordered,
W.
Gray
C.
Mahoney
pe-
Fla., Botts,
&
Jacksonville,
the
the
that
Trustee surrender to
counsel,
Whitehead, Jacksonville, Fla.,
property
of
titioner
sub-
the described
agree-
ject
appellee.
to the retention
for
of title
ment,
pay
or
to the
that the trustee
BROWN, Cir-
TUTTLE and
Before
petitioner
principal
of
sum
the
SIMPSON, District
Judges,
cuit
accruing
plus
to the
$550.00
interest
Judge.
involuntary
filing
of
date
the
bankruptcy petition.”1
Judge.
TUTTLE, Circuit
day
On the same
modifiеd
the Referee
summary
appeal
a
an
from
This is
May
provide
his order of
of
sale
20th to
pros-
enjoining appellant
from
property
that the
of
sold should
free
be
ecuting
Flor-
the state courts
a suit in
liens and unencumbered. On the follow-
against appellee’s
cer-
ida
transferees
ing day
plant,
the trustee
appellee
sold the entire
purchased by
the
tain
advertised,
approved
appellee
as
$49,-
at
the
for
a
forbidding appel-
the
district
on
appellee
the condition that
be
initiating any
for
suits
lant
permitted
price
to offset
the
so
recovery
for dam-
the
ages
the
necessary
much
approximately
as
taking.
principal issue
for its
$70,000 mortgage indebtedness owed to
whether
bankrupt;
the
the district court
under the circumstances
hibited
Sep-
the sale on these terms on
Code,
by section 2283 of
Judicial
case
tember 30th. On November 5th the
U.S.C.A. §
conveyed
trustee
plant
appelleе
appellant
entered
On October
by a Deed and Bill of Sale which ex-
with the
into a “retain title contract”
pressly
system.
pipe
covered the blow
Manufacturing Company, where-
Parker
trustee,
and installed
On December 2nd
furnished
evident-
having
company
ly
for
system
any
pipe
realized
cash with
blow
retaining
$3,724.32,
price
pay
plus
purchase
he could
a
title,
interest
$550
system
“ful-
appellant,
until
was
letter
wrote a
to its at-
to the
torney
January
ly
in cash.” On
paid for
:
Manufacturing Com-
Parker
«***];***
by this
am>
bankrupt
adjudged
all
pany was
advising you
letter,
forth-
that we
placed
hands of a
were
its assets
ques-
surrender the
still
trustee;
time
$550.00
subject to
retention title-
appel-
owing
above contract and
on
agreement
your client,
in favor of
The Referee
claim.
secured
filed a
lant
Pipe Company,
Jacksonville Blow
con-
May
directed the trustee
20th
on
being
prem-
same
located on
plant
Parker
public sale
duct
Manufacturing
ises of Parker
Com-
thereupon advertised the
trustee
and the
pany, Inc.
listing
unit,
plant for sale as a
entire
may proceed
part
equip-
“You
system
on the basis
of its
pipe
blow
Trustee,
petitioned
I as
accordance with
5th
June
On
ment.
Referee’s
order entered on
the own-
be declared
that it
the Referee
day
June, 1953,
16th
quished
have relin-
trustee be
that the
er of
rights
give
possession
all
claims
I
them
either
directed
my
capacity
have
pay
of their
Trustеe
them the amount
or to
question.
pipes
thereupon
claim;
Ref-
This should!
16th the
June
you
proceed
sufficient
ini
as follows:
be
ordered
eree
appeal
order, which, however,
from this
20th the trustee entered
June
1. On
perfected.
never
you
(Em-
manner
deem fit.”
granted
ment
the district
phasis added.)2
junction
prayed for on the condition
January
5, 1954, appellant
On
sent
deposit
plus
$550
plant
truck
system,
to remove the
requisite
interest with the court.3
*3
negotiations
but
repre-
after some
with
.
principal
ap
by
issue is created
appellee,
sentatives
of the
pellant’s contention that because
persuaded
system there,
to leave the
provisions of 28 U.S.C.A.
2283
dis
§
prominently
sign:
marked
with a
trict
jurisdiction
court was without
to
“Property
of and
sale
for
injunction.
enter
such an
Reliance
Pipe Company,
Jacksonville Blow
placed principally
Sargent
Helton,
on
v.
3687,
5-0586,
P.O.Box
Phone
Jack-
348,
412,
115
78,
U.S.
6 S.Ct.
29 L.Ed.
sonville, Florida.”
followed in Piedmont Coal
Hus
Cо. v.
tead,
Cir.,
On
appellee
556,
March
3
247,
15th
294 F.
sold the entire
32 A.L.R.
plant,
warranty
denied,
certiorari
title,
582,
to H. Pick-
264 U.S.
44 S.Ct.
ett,
331,
conveyed
860,
who
68
parts
L.Ed.
thereafter
to the
and on
v. New
York
Company
118,
Co.,
Life
Insurance
Cash Lumber
to others.
314 U.S.
62
139,
S.Ct.
September
100,
25th
On
86 L.Ed.
offered to
and Amal
gamated Clothing
pay appellant
the amount of
claim
its
Workers v. Richman
7, 1955, appellee’s
452,
April
Co.,
511,
check for Brothers
U.S.
S.Ct.
necessary
appellant by
one who
challenge
under
tion of a state suit that would
adjudication
[a federal
court]
notwithstand-
of title
had been
ing
litiga-
among
parties
made
privies
265 restrain state court
or their
effect of
tion whiсh would have the
Berman
in an earlier action. See also
defeating
impairing
jurisdic-
Tramway Corp.,
Cir.,
its
Denver
tion.” 136 F.2d
F.2d 946.
Supreme
certiorari,
Court denied
Supreme
Since 1948
has de
*5
York,
City
sub nom Salomon v.
of New
directly
here
cided no case
relevant and
450,
756,
64,
opportunity
320 U.S.
64
88 L.Ed.
S.Ct.
has
to
once taken the
794,
263,
and 320 U.S.
64
88 L.Ed.
broadly
present provi
S.Ct.
comment
on the
Amalgamated Clothing
479.
In
sion.
Workers
Co., supra,
v. Richman Brothers
where a
present
In 1948 the
form of the
union, arguing
the field of inter
prоvision
adopted.
restrictive
U.
was
28
preempted
state labor relations had been
2283
S.C.A.
reads as follows:
§
by Congress,
in
sued
federal
to
court
“A court
United
of the
States
enjoin
seeking
employer
an
in
an
grant
stay
an
junction
against peace
in a state court
proceedings
except
State
picketing
ground
ful
on the
that such
expressly
authorized
Act of
picketing still violated the state laws
Congress,
necessary
or where
aid
conspiracy
and rеstraint
jurisdiction,
protect
of its
or to
trade,
the Court held that
neither
judgments.”
effectuate its
explicit exception
nor
first
the second
in
pertinent portion
corporated
of the Reviser’s
2283
such
§
would allow
proceeding,
restraint
Note states:
of a state
for no
expressly
federal
labor statute
author
“The
specifically in
injunction against
ized
a state
protect
clude the words ‘to
or ef
such a situation and the federal court
judgments,’
fectuate its
lack
jurisdiction”
could not “aid its
since it
Supreme
which the
Court held that
yet acquired
had as
none over the dis
pow
Federal
are
courts
without
pute
acquire any
and would not
unless
enjoin relitigation
er to
of cases and
brought
appropriate
L. R. B.
N.
fully adjudicated by
controversies
action;
phrase
here critical
final
(See Toucey
courts.
New
2283
not there at issue since there
§
Co.,
York Life Insurance
314 U.S.
previous
no
118,
62 S.Ct.
399 Rela National Labor prohibition fed- eliminated. Cf. the historic Cir., Company, tions & 8 Board v. Swift eral interference with 226; Toucey proceedings. 233 F.2d v. Laclede Gas v. New Collins See Company, Co., Cir., F.2d York Life 314 U.S. 633. Ins. By 62 S.Ct. L.Ed. 100. agree ap- We are unable to Congress enactment, clear be- made understanding pellant’s 2283 based § yond prohibition is cavil that on the In above decision. view away by judicial not to be whittled general approval excep- of the in rem * * * imрrovisation. The 1948 supported there enactment codified. revised well as arguments persuasive many The old embodied section was thus decisions, absence of ** in the new 2283: Congress modify dication wished page U.S. at at S.Ct. it, and Note view Reviser’s “ * * * that: the revised section conveying “This not a statute generally restores the un- basic law as general policy appropriate ad broad interpreted prior derstood and application. Legislative рolicy hoc is Toucey decision” we see cannot how expressed prohibition here in a clear-cut argued exception can be qualified only by specifically defined ex- longer viable; applied now no “in 515-516, pages ceptions.” at 348 U.S. exception rem” the broad statements in page 455. Bros, the Richman case would at most commenting footnote, on the be dicta. Reviser’s Note paragraph final approval Toucey case, Given *6 quoted above: misgivings, albeit with and of Julian the that, mean de “Even if taken to as within the in rem Riverdale cases exception, wording, the sec spite the revised concluding ex- that that and content to derive its tion is applicable ception still under the new is prior these con to decisions present statute, the case is feel that we present precedent for the no tain proceeding. sufficiently the its bounds. On within *** Moreover, in Toucey view hand if thе dissent’s quoted the is that it clear context taken, is cases i. e. that of the earlier particular phrase the refers to they illustrative are in effect of the “re- the problem before which was litigation” exception since the res in Toucey U.S. at case.” in the already passed from the each case had page 455.6 fn. custody statutory then the of the Toucey holding comments in the of the as to these reversal basis of On the Bros, argues opinion personam exception in in the this situa- Richman tion, necessarily only exceptions here a in 2283 are which is § the that fortiori categories relitigation proceed- specifically the of an rem set forth of the three longer ing, preserves authority the both of the is thus no and it therein permissible any import of the Julian and Riverdale cases and their con- trolling to three here. If effect in addition it that had been made Toucey case, except that thе taken into account in- identified “relitigation” appellee exception party as the was a is well to as the the sofar original proceeding, phrase defend- final of that the the the now covered privies .statute; excep- are “in rem” ants the state action therefore the opinion approved by the title entitled to both thus tion any judgment Toucey the case would claim benefits dissent be the specific holding dissents, by Toucey the case it of two concurred in In one reject philoso- Justices, was also intended phy Mr. Chief Justice Warren “its three argues inflexibility” ap- meant to be 2283 is and to § case, provision prove dissent in that but narrower than the broader reversing replaced, and that besides (30 Am.Jur., Judgments, secures his title Ry., C.C.N.D.Ill., Wisconsin Central 222-27), Sargent see that is even §§ we F. that in the the state case “relitigation” plainly more proceeding situation a and the commenced excepted prohibitiоn now from the attachment made before the federal ac-* legislative reversal of initiated, had even been feel we Julian, than even which the en- we are not bound that decision. joined parties participants had not been ap On the substantive merits litigation. previous Finally, view- pellant’s easily disposed claim is of. ing only abstract, statute in the Principally following based on the appears district action court’s here points: (1) that trustee bound clеarly authority be “to covered by the Referee’s order either to return protect judgments” or effectuate its pay claim, or to litiga- since all that is in the state by making arrangements sale that change tion is to the manifest effect yield money he had indicated of the actions and orders of the court his property; (2) election to return appointed trustee, Referee, that the explicitly trustee had abandoned approving the court itself thе Bill of appellant by let his including system; pipe Sale the blow ter of 1953; (3) December ap nothing productive would be as of fric- pellee had waived its claim to the tion between the state and by the they statements in a certain brief permit courts toas proceeding, by filed in permit upset perhaps terpret such a ting posting sign prop on the court.7 judgment of a federal erty indicating appellant’s ownership, offering pay relies on the old Appellant the claim even also case though ostensibly Helton, they supra, purchased Sargent which it free of in view R.S. all liens. held that None By bankruptcy sale these contentions has purchaser at a could merit. enjoining advertisement, protected acceptance ap a state court his his be purchased prop- proceeding pellee’s purchase plant, offer to the entire *7 proceeding erty, by been com- which Bill of Sale attaching by before clearly menced trustee had indicated that he bankruptcy initiated system was but which had elected not return the to' completed only appellant; after the federal any pro if he was failed to make property, pay appellant by where no required sold vision stay made to the state ac- motion was the Referee’s order action could have during bankruptcy proceeding. tion Appellant initiated or his trusteе only cites one relevant case appeal bond—but even did not Sargent, settling followed Piedmont Coal from the order ac trustee’s Hustead, supra, discharging pur- v. in which Co. counts him. The letter ported reliance on case the earlier December pass 2nd was ineffective to since it held there the dicta title to for the already purchaser did not Sale, take free liens creat- received its Bill of proceeding. relinquishing earlier state сourt ed trustee’s act in thus “all Julian, rights Riverdale, view later my In Bethke, and claims I have in cases, capacity nuga American Brake entirely Shoe as Trustee” was Sargent tory. Helton, appellee’s acts, none of which refer to None of all V. ap- and in view of distinction also which were considered the district pointed plicable conveyance here out Stewart amounted v. to a of its explicit pro- 7. It should be noted that the first those none allоw an exception: expressly purchaser sale; bankruptcy “as authorized tect a in a Congress” Act of is see (15), not available here §§ U.S.C.A. sub. for the relevant statutes here are sub. a. Bankruptcy Title, those under right system. approve undoubted such interference. No rea- is Finally son should be noted that there it exists for bankruptcy proceedings to appellant’s position, equity be so sacrosanct. I am not convinced receiving being the entire Congress, satisfied by its enactment interest of its claim with amount last power clause of granted Sec. has proceeding now the it a no-asset to hold them so. I re- verse, the forfeiture to wishes to assert with directions to dismiss the com- plaint. many the amount worth times damages in excess its claim and original their contract. value of The is district court
affirmed. Judge
SIMPSON, (dissent- District
ing). deference, re- I dissent with With all question jurisdictional spect is, inter- in this volved John D. GREEN, majority upon also pretation placed knоwn as Jack D. Green, Petitioner Appellant, As I read Sec. U.S.C.A. authority decision, is jurisdiction liti- Harley of all TEETS, to assume courts O. Warden of the Califor affecting nia gation any property State has Prison Quentin, at San Respondent Appellee. bankruptcy proceed- in a been sold ever long ing, Misc. of such after the close No. 634.
ceedings. thus mat welcome United States Appeals Court of requiring spread, courts the district Ninth Circuit. litigation that vexatious entertain much April 5, 1957. go elsewhere. should The mere confirmation a trustee’s sale) (a emptor caveat of assets re- in no sense a specting determination conveyed, prop-
the title or the erty Here re- covered.1 state court
plevin subsequent pur- action *8 claiming chaser under right purchaser, of the trustee to questioned, sell certain the title to the litigated
be first time. In the legislative authority absence of clear by injunctive
interfere decree with such proceedings,
state court should opinion: majority scription 1. The statement retention title con conveyed “On November 5th thе trustee tract of claimed plant appellee by entirely a Deed and dissimilar. The expressly Bill property may same, Sale covered the not be the pipe system” accuracy. is, blow course, question lacks This go fact, “ * * language ing merits, Bill of Sale was pur which I shall not personal property thereon, is, located in- sue. It illustrative of the eluding following: questions but not limited to factual has never * * system consisting *: blower opportunity had an litigate, to raise and 10-horsepow- 55-inch blower fan with a permanently enjoined and is now * ** motor; litigating. er electric The de