Yellow Motor Co. of St. Louis v. Davis, 27 F.2d 597

Yellow Motor Co. of St. Louis v. Davis

27 F.2d 597 | 8th Cir. | 1928

PER CURIAM.

This is a petition for a writ of prohibition to prevent Judge Charles B. Davis, of the Eastern District of Missouri, from carrying out and enforcing an order, entered by him, which required Ered M. Williams and others to submit to an examination in the bankruptcy matter No. 5242, In re Yellow Motor Company of St. Louis.

May 8th an involuntary petition in bankruptcy was filed against the above company. May 22d that company filed an answer, among other things, denying that the petitioners were creditors or that it had committed the act of bankruptcy charged. May 24th the petitioning creditors filed an application for examination of the officers of the alleged bankrupt and of others, under the provisions of section 21a of the Bankruptcy Act, 11 USCA § 44 (a). An order to that effect was entered upon that day. Thereafter a motion to vacate said order was permitted to be filed and, after hearing, was denied on June 29, 1928.

The contention presented here is that Judge Davis had no jurisdiction to order or permit this examination, because section 21a allows such examination only when the estate of the alleged bankrupt is in process of administration under the Bankruptcy Act and that, as nothing had occurred in this matter except the filing of the involuntary petition and the challenging answer thereto, that the estate was not in process of administration.

We do not stop to examine whether the writ of prohibition is a proper remedy under the circumstances here existing (Ex parte United States, 263 U. S. 389, 44 S. Ct. 130, 68 L. Ed. 351), but we think Judge Davis dearly had jurisdiction and power to make the order here in question. This result we think is ruled by Cameron v. United States, 231 U. S. 710, 717, 34. S. Ct. 244, 58 L. Ed. 448; In re Youroveta H. & F. T. Co., 288 F. 507, 513 (C. C. A. Second Circuit); In re Mitchell, 278 F. 707, 709 (C. C. A. Second Circuit); In re Standard Aero Co., 270 F. 783, 784 (C. C. A. Third Circuit); Raw*598lins v. Halls-Epps Clothing Co., 217 F. 884, 885 (C. C. A. Fifth Circuit); Broward County Lumber Co. v. Burgess, 17 F.(2d) 1010 (C. C. A. Fifth Circuit); In re Stell, 269 F. 1008 (D. C. E. D. Texas); In re Henderson, 266 F. 254 (D. C. Mass.). The jurisdiction given by section 21a of the act is the jurisdiction to exercise a wise judicial discretion.

The petition for the writ will be denied, and the petition will be dismissed, at the cost of petitioner.