*1 nаte from jury’s positive minds adverse which might effect have been cre- testimony.” ated again, “im- peaching contradictory are statements destroy ‘admitted credit witnesses, to annul and not to substitute ” their testimony.’ jury Whatever the may have concluded us to the impeaching effect affida- vit, the information it contained presumption evidence. The that at the accident, time of the McAdams was driv- ing the truck on employer’s business, his completely disappeared from up- the case
on the coming in of defendant’s uncontra- evidence, dicted as to McAdams’ duties obligations with reference to the truck and as to was doing, what he at the time. Plaintiffs, offered rebuttal, no evidence in presumption entirely and their gone, they
¡stood, wholly without evidence to take
their jury. case judgment should have been re- versed. respectfully I dissent from its
(cid:127)affirmance.
On Petition For Rehearing.
PER CURIAM. As neither of the judges who concurred
<in judgment of the сourt in the above numbered and entitled opinion cause is of petition for rehearing should be granted, it is ordered that the said be and the hereby same is denied.
PALMER WARREN et et al. v. al.
Nos. 38-98. Appeals,
Circuit Court Second Circuit. Dec. 1939.
Rehearing Denied Jan.
Writ of Certiorari Granted March
See 60 S.Ct. 84 L.Ed.-.
165
rejected its lease
the New Haven
3, 1936)
(June
of the Old
to de-
31,
and December
deficit
declare whether
termine and
or-
road.
was
liquidated
der,
April
entered
charged it as a
deficit,
amount of
was
creditors—there
general
Providence
mortgage.
Boston &
owner
corporation and the
a Massachusetts
implies,
railroad, running, as its name
of a
Providence;
1888it
between Boston and
years to the
property for 99
leased all its
corpora-
also a Massachusetts
tion,
operating
network
owning and
lines in that
In 1893the Old
state.
including the
in turn leased its own lines—
years
term
it held of the
Haven;
also for
Providence—to the
years.
oper-
a term of 99
until, having become
ated
three roads
insolvent,
put
reorganization
it was
into
Act,
Bankruptcy
Oc-
under
.on
77 of
§
23, 1935,
others were
and Palmer and
tober
made its trustees. The trustees
continued
operate
Colony as lessee's until
the Old
3, 1936, when, by order of the bank-
June
lease,
ruptcy
they rejected the
they
of an
thereafter
virtue
order, presumably made under subdivision
c(,6)
although the order did
of §
All
had run at a
so recite.
three roads
months,
for the first seven
deficit
put
was also
June
reorganization
into
under
Since
§
shares,
majority
of its
New Haven held
proceedings, as
the court united the two
appointed
(sub. a),
statute allows
the
the same
trustees.
continued,
The deficits still
Mass.,
Griswold, Cambridge,
Erwin N.
the court instructed the
appellants.
reject the Boston &
trustees to
Providence
Gardner, Jr.,
H.
Hermon Wells and
did;
lease,
they
J.
J.
con
Haven, Conn.,
appellees.
both of New
before,
tinued,
operate
roads
both
c(6)
order under sub.
the court’s
§
HAND,
N.
AUGUSTUS
Before L.
4th,
August
the Boston & Provi
HAND,
CLARK,
Judges.
Circuit
reorganization, and
into
put
dence
HAND,
Judge.
Circuit
L.
appointed its trus
and others were
Warren
tees. That
proceeding was in the
District
Corpora-
Boston & Providence R. R.
Massachusetts,
could not have
Court of
ap-
reorganization
its trustees in
tion and
joint
bar,
with the
one at
be
united
orders,
joint been
entered in a
peal from two
Haven, nor
neither the New
Bankruptcy
proceeding under
77 of the
§
majority
Colony, owned a
of the Bos
reorganize
Act,
11
U.S.C.A. §
shares,
required by
& Providence
ton
York,
R.
New Haven and Hartford
New
R.
(over
appeals
both of
77. The
a of
Colony R. Co. The
R.
Co.
jurisdiction, Robertson v.
we have
orders,
entered
first of these
Cir.,
530) involve
Berger, 2
102 F.2d
bankruptcy cоurt
decided that
the Con
questions:
(1) whether
following
jurisdiction
to determine the amount
declare
necticut court had
operation of the
the deficit caused
Providence
that the Boston &
day when
Boston & Providence between the
res,
between
must at some
surrender
time
the Boston & and
can
a lien
know whom it
should delivei
reversion;
so,
(2)
whether
in case it
either
decides
declaring
possession itself,
that court was
right in
the action
awaits
lien;
(3)
competent
deficit did
whether
constitute a
such other
tribunal as the claim
*3
may
the amount found was correct.
ant
choose.
..
The second course sub
jects it to
delay
dispatch
an indefinite
in the
(1)
the Connecti
of
The Jurisdiction
of
it,
may
effectively
before
cut Court.
cripple
powers.
its
not
The same is
in
demands,
deed true where the claimant
not
Supreme
The
laid
Court has
it
right
possession,
to
but a lien or other
court,
down
numerous decisions that a
res;
similar interest
the custodial
federal,
lawfully-
state or
has once
which
court
then
itself with
content
learn
custody
adjudi
property, may
assumed
ing who
possession,
was entitled to
any
it,
only
cate
claims
not
when
any
leave
unadjudicated;
other
interests
the claimant
suit
asks
intervenes in the
indeed that is what it does
like
in cases
a
rights
declared,
that his
when
be
possessory
bare
admiralty,
libel in the
for
court cites him in in invitum.1 Courts of
instance. But this
incomplete
would leave
jurisdictions
other
recognize
judg
its
will
purpose
suit, if,
of the
gen
main
as is
judicata,
may enjoin
ment as res
and it
case,
erally the
that is the distribution of
rights
claimants
from prosecuting their
hands,
the assets in its
presupposes
which
elsewhere, except as
finds more con
it
it
that all liens have been ascertained.
In the
venient
allow
All
to
them do so.
this is
to
not,
case at bar the New Haven is
it is
entirely
law,
familiar
and the Boston &
true, resisting a lien;
it is itself the claim
it;
dispute
says
does
it
ant,
putative
But,
a
although,
lienor.
inapplicable,
it is
district
because the
court
found,
far as we have
that situation has
possession
property.
never came into
courts,
come before
it seems to us
argument
Colony got
is
plainly a variant
right
of a claim to the
years;
a
for
and that the
term
99
dis
possession.
private
If
the roads were
possession
trict court could take
of no more
corporations, there could be
doubt
no
about
than
lessee had had. This misconceives
this.
would in
doctrine,
&.Providence
depends
of the
the nature
posses
asserting
right
that case be
possession
merely upon
in the natural sense
sion, which the New Haven and Old Col
court’s
are in control
officers
ony
resisting
ground
would be
on the
property de
can
exclude all
facto
road;
they had
lien on
a
it would be a
scarcely prac
Indeed it
be
others.
would
typical
case which
would
adopt
juris
for
have
any
ticable
other basis
jurisdiction. Because
Provi
necessary
Were
court
diction.
servant,
cannot,
public
is
dence
possession
have
should
insolvent’s
least,
present
operated
sep
be
as
adjudicate
legal interest
in order to
carrier,
disguised;
every
result
is
erroneous
arate
judg
follow that
would
proper jurisdic
and the Old
must be
un
beyond
ment would
possession
control
right
tion,
to act
New
and it
Haven;
Moreover,
c(6)
correctly.
77. But we can see
it acted
we
when
this,
falsify the
meaning
why
whatever
no reason
rela
can attach
themselves;
roads
legal
interest in
tions between
two
“possession”
thing,
them,
possession
indeed,
except
thing
means
is
as it
it has
effect
conclusion,
to confirm our
object
lying
The reason
nature.
likely
possession
Haven’s
be dis
is not
practical
whole
back of the
doctrine
rath
may
plain
possibly
turbed.
true that
conceptual,
appears very
It
er than
to resort
Connecticut
dispute
t<
court will have
when the
concerns the
custody
through
Massachusetts
court,
its trustees
possession. A
has
533;
292,
Taubel,
Christy,
etc.,
parte
Fox,
11
68 L.Ed.
3 How.
Co.
1Ex
L.
v.
426,
Whitney Wenman,
603;
432-33, 44
396,
198
264 U.S.
v.
U.S.
S.Ct.
68
Ed.
770;
1157;
539,
778, 49
Wab
L.Ed.
Isaacs v.
25 S.Ct.
L.Ed.
Hobbs
& T.
Tie
College,
Co.,
734,
270,
208
282 U.S.
Adelbert
51 S.Ct.
75
Railroad Co. v.
ash
L.Ed.
379;
645;
New,
318,
38,
182,
321,
v.
28
52 L.Ed.
Straton
283
S.Ct.
U.S.
U.S.
Co.,
1060;
parte
Murphy
211
51 S.Ct.
75
v. John Hofman
U.S.
L.Ed.
Ex
327;
Baldwin, 291
29 S.Ct.
53 L.Ed.
Hebert
54
U.S.
S.
Crawford,
Avery
228
33 S.Ct.
Ct.
78 L.Ed.
v.
v.
U.S.
Harris
Brundage
800; Chicago
Co.,
Board of
L.Ed.
Trade
305 U.S.
59
57
S.
Johnson,
264
44 S.Ct.
Ct.
.169 jurísSiction order “the over “Petition meant than that existence 301”, judge obligation” over amount of the left Order No. to be by large, ruled That is the or аt and not deemed concluded Or- Indeed, He already der affirmed. der No. 300. indicated which we have merits; hearings hearings upon then but be several times “Re- held on the at the port thought questions had been he that all of Administration” that he understood , finally by he re settled Order No. the Boston & Providence must 300 separate upon fused as to the. hearing liability. to receive evidence cor a Formula”, “Segregation opinion, quoted rectness lan- although in his he permit liquidation of the Boston fresh guage paragraph Order five No. He Providence’s share of the deficit. effect, he did being apparent- discuss its liquidated prayed claim at the amount ly concerned with that of Order No. that was declared se 300, alone. open, taken What so left upon cured e., “existence obliga- i. tion,” and amount of the Prоvidence, reduction dispute. covered whole Certain- imposed upon the lien obligation” “amount included May Order 300. On 5th he entered No. apportionment opened the deficit and denying another order “Petition Or “Segregation Formula” to If it attack. appeal der No. is from 276”. open argued that it did existence April Order No. entered securing “obliga- rank of tion” and that- No. 300 Order Haven and estoрpel lays that, toas the last sentence support seek judge’s ruling any doubts, for it declared that himself; grounds same is, gave which he action defer “Petition for Or- ap the Boston & Providence that asked a modification of peared generally proceeding, had ob deficit, Order 75 so that among other *6 jected to Bankers Trust Co.’s “Petition payments, should not become and to trustees’ of the Boston & Prоvidence. “Report of Administration” which followed estoppel then was left for What of Or- say that, having They it. been heard proposed If 300? it was No. treat length, at road was free not to reliti estoppel as to that order as of these gate questions decided, among matters, was, paragraph five say proper apportionment was the least, extremely misleading. Whether validity Had it appealed Providence would Boston & the concluding paragraph been for assured, No. not so from Order we if 217, conceivably Order reasoning No. know; surely cannot indeed but it was en- might prevail; we cannot see how that titled to assume it need do so. can survive what was there declared. appears this record to have had its originally When to the judge, submitted court, day in and the order must be re- provided paragraph five of the order that that shall. versed expenses 3rd, since June made on behalf of should be deemed Order of affirmed. Providence and should be No. reversed. Order However, Co., the Bankers' Trust liens. .order, agreed presented the to add Rehearing. On Petition quoted language we above. as a suffix the protested PER CURIAM. liability this would determine its and leave have been misun- seems to opinion Our nothing accounting, to decide but if not clear. We perhaps was derstood and that; even left observed Haven it means agree the New with provisions, the main suffix nullified & .Providence the Boston more than that suggested part the earlier be omitted. procure any change by the cannot now objected It was then Order No. 75 in “Segregation Formula” Commission provided thing. substance be- However, same To this we meant decide itself. fore, judge replied: say “I again, these items shall now and we decide charged by oppose such method as the court free to Boston & Providence is now, shall application by determine. And Court of that at Mr. War the District request, say ren’s am going I shall its account formula to the freely Or- hearing”. be determined In with the debtors view had not of this cannot see else der No. 300 been entered. we what