177 F. 170 | 7th Cir. | 1910
Swigert, a merchant tailor, in October, 1905, sold a third interest in his business to Filmar. The firm of Swigert & Filmar continued the business till January 8, 1906, when Swigert sold his interest to Filmar in consideration of a small money payment and Filmar’s agreement to pay the partnership debts and save Swigert harmless therefrom. Partnership assets were then in excess of partnership debts. By payment and novation Filmar very shortly settled all partnership debts except one to appellant Rippincott. Rippincott refused to accept Filmar as debtor in place of the partnership, and proceeded to press Filmar for payment. Filmar, by various promises and representations, warded off Rippincott until February 20, 1906, when he filed his voluntary petition in bankruptcy. The property scheduled by Filmar and turned over to the trustee had all been property of the partnership. The scheduled debts were all separate individual debts of Filmar’s except the debt to Rippincott. Thereupon Rippincott filed his petition, asking that his dqbt be paid from the assets ahead of the claims of Filmar’s individual creditors; and Swigert filed a like petition, asking the same relief, without offering to repay the consideration he received on selling his interest to Filmar. The final decree dismissed these petitions for want of equity; and the petitioners have severally appealed.
With the property in custody and all the parties present, and no rights of innocent purchasers or transferees having intervened, a court of general equity powers would concededly award priority to Rippincott, because there had been no application of the property, with the consent of the partners, to the payment of individual debts (Sargent v. Blake, 160 Fed. 57, 87 C. C. A. 213, 17 L. R. A. [N. S] 1040), because Rippincott in his own right as a partnership creditor would be entitled to equity’s rule of distribution, and because Swigert for his own protection would have the right to ask that Rippincott be first paid.
Was there less power in the bankruptcy court? Section 5a (Act July 1, 1898, c. 541, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3124]) declares that:
“A partnership, during ¡lie continuation of the partnership business, or after its dissolution and before the final settlement thereof, may be adjudged a bankrupt.”
“The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property.”
And in section 5h it is provided that:
“In the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt; but such partner or partners not adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit, and account for the interest of the partner or partners adjudged bankrupt.”
Under the various provisions, of section 5, what procedure on Lippincott’s part would have been necessary or possible in order to invoke the full equity powers of the bankruptcy court, in case Swigert had not voluntarily appeared and filed his petition, we will not now inquire; for, with his appearance, the bankruptcy court had before it all parties in interest, and his petition was a consent that the partnership property be administered by that court in accordance with the equitable principles approved by Congress. Compare In re Wilcox (D. C.) 94 Fed. 84, 107; In re Jones (D. C.) 100 Fed. 781; In re Denning (D. C.) 114 Fed. 219; In re Head (D. C.) 114 Fed. 489.
The decree is reversed and the cause remanded, with the direction to enter a decree in accordance with the prayers of the petitions.
