U.S. Court of Appeals for the Ninth Circuit, 1927

Van Norden v. A. C. Wagy & Co.

U.S. Court of Appeals for the Ninth Circuit · Decided October 31, 1927 · Gilbert

22 F.2d 9; 1927 U.S. App. LEXIS 3257 (Federal Reporter, Second Series)

Counsel

Arnold C. Lackenbach, of San Francisco, Cal., for appellant., W. T. Craig and Shaw & McDaniel, all of Los Angeles, Cal., for appellees Carnahan and Scott., B. W. Kemper, of Los Angeles, Cal., for bankrupt., Shaw & McDaniel, of Los Angeles, Cal., for petitioning and intervening creditors., Kyle Z. Grainger and Clare Woolwine, both of Los Angeles, Cal., for certain intervening creditors.

Cases that cite this one

9 later published cases cite this decision.

(PC) Blocker v. Sadighi (United States District Court for the Eastern District of California 2021)
In re Tauscher (United States Bankruptcy Court, E.D. Wisconsin 1982)
In re Stevenson (United States District Court Eastern District of Louisiana 1942)
In re Fox West Coast Theatres (9th Cir. 1937)
Tally v. Fox Film Corp. (9th Cir. 1937)
Broadway & Twentieth Properties, Inc. v. Paramount Publix Corp. (2d Cir. 1933)
Chicago Bank of Commerce v. Carter (8th Cir. 1932)
In re Rodgers-Meyers Furniture Co. (District Court, N.D. Texas 1931)
In re Levine (District Court, E.D. Pennsylvania 1929)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

GILBERT, Circuit Judge

(after stating the facts as above). The pendency of the involuntary petition did not deprive the court below of jurisdiction to receive and consider the voluntary petition, and the fact that adjudication was made under the latter did not preclude jurisdiction to protect the creditors under the former. International Silver Co. v. New York Jewelry Co. (C. C. A.) 233 F. 945. It is held that, unless some question of the preservation of the rights under the earlier involuntary petition arises, there should be an adjudication under the subsequent voluntary petition, In re Lachenmaier (C. C. A.) 203 F. 32; In re Anderson Motor Co. (D. C.) 18 F.(2d) 1001; and that as a general rule'the adjudication should be made in the voluntary ease “since it is quicker, less expensive, and less likely to lead to delay and unnecessary litigation.” In re New Chattonooga Hardware Co. (D. C.) 190 F. 241. It results that, if the appellant failed to present to the court below ground for vacating the adjudication in the voluntary proceeding, he was entitled to no relief in that court on either of his petitions.

It remains, therefore, to inquire whether the appellant was erroneously denied the order to show cause why the adjudication on the voluntary petition should not be set aside and vacated and the receivers discharged. We think it clear that there was no error. *11In the first place, the application was for an order directed only to the receivers. It seems unnecessary to cite authorities to' the proposition that in the proceeding in question the receivers were not the representatives either of the creditors or of the bankrupt, parties whoso presence was absolutely essential to the determination of the question presented by the petition. Notice to all parties who had appeared was indispensable. Tardy’s Smith on Receivers (2d Ed.) 2106.

In the second place, it is a fact decisive of the present appeals that a creditor has in no case a right to maintain a petition to vacate an adjudication of bankruptcy made in a voluntary proceeding. In re Ives (C. C. A.) 113 F. 911; In re Pennington & Co. (D. C.) 228 F. 388. In re United Grocery Co. (D. C.) 239 F. 1016; In re Ann Arbor Mach. Co. (C. C. A.) 274 F. 24.

The orders of the court below are affirmed.

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