Dealtry v. Posse School, Inc.

100 F.2d 470, 1938 U.S. App. LEXIS 2685
CourtCourt of Appeals for the First Circuit
DecidedDecember 28, 1938
DocketNo. 3360
StatusPublished
Cited by5 cases

This text of 100 F.2d 470 (Dealtry v. Posse School, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dealtry v. Posse School, Inc., 100 F.2d 470, 1938 U.S. App. LEXIS 2685 (1st Cir. 1938).

Opinion

PETERS, District Judge.

This is an appeal from an order of the district court granting an injunction in the course of a ’ reorganization proceeding pending under former Section 77B of the Banlcruptcy Act, 11 U.S.C.A. § ’207.

The appeal was taken by Clarence W. Dealtry, whose subsequent death was followed by an order of this court permitting his administratrix to be substituted as party appellant; but the original party, Mr. Deal-try, is the person herein referred to as the appellant.

The appellant contends that the order granting the injunction was invalid because certain provisions of the statutes were not complied with, and that the court acted without jurisdiction, abused its discretion and violated the constitutional rights of the appellant.

There are no findings of fact in the record, but from the exhibits and admissions of counsel in their briefs the following facts appear:—

The defendant school, a corporation, filed its petition for reorganization on June 11, 1937, and, upon approval of the petition was continued in possession and authorized to continue the business.

On July 20, 1937, the debtor filed a plan of reorganization which was followed by hearings on disputed claims before a special master who filed his report in April ■of 1938.

At the commencement of the proceedings the appellant, Dealtry, was the clerk and attorney of the corporation and acted as such. In September, 1937, he was elected treasurer. Shortly after the filing of the master’s report a dispute evidently arose between Dealtry and others interested in the corporation and an amended plan of reorganization was filed, following an order of court, on April 18, 1938, by counsel other than Dealtry.

On May 2, 1938, Dealtry received permission of the court to resign as clerk and treasurer of the corporation and to withdraw as its counsel, and did so.

On June 1, 1938, the debtor corporation filed its petition to enjoin Dealtry from interfering in the proceedings, alleging, among other things, that Dealtry, prior to his resignation, had been soliciting support for appointment as trustee by representations in part untrue; that Dealtry was interfering with the efforts of the debtor to obtain approval of its amended plan of [472]*472reorganization by making unfounded representations to creditors and other parties in interest to the effect that William F. Carlson, the president, was to be left in control by the plan; that Dealtry, although no longer treasurer or in any way authorized to act for the debtor, was continuing to solicit from its graduates donations and pledges for its benefit and payment of former pledges that had been made; that out of such funds collected he was making payments to creditors; that he had refused to turn over pledges and moneys remaining in his hands as treasurer; and that Dealtry was claiming the ownership of and the voting rights in 250 shares of stock standing in the name of its president; whereas the special master had reported to the court at the time of the hearing on confirmation of the amended plan, that, of the total outstanding stock-of 308 shares, Carlson, the president, owned 125, the debtor 125, the remaining 58 being owned by other persons; that the special master had recommended that the amended plan be modified so that both the Carlson stock of 125 shares and the treasury stock of the same amount should be placed in a voting trust; that Dealtry was interfering with the proceedings by making unfounded claims as to his rights under an assignment of the stock by Carlson and threatening to bring a suit in the state courts in order to gain title to, and the right to vote, the block of 250 shares above mentioned. •

It was alleged that the actions and representations of Dealtry were designed to prevent confirmation of the plan and successful culmination of the proceedings.

Dealtry’s claim to the stock rests on an assignment from Carlson dated in May, 1937 (a few days before an involuntary bankruptcy petition was filed against the corporation) by which Carlson assigned all his right, title and interest in all shares of the corporation standing in his name or to which he was entitled “being not less than one-half of the authorized capital stock”, subject to a previous assignment to a former president of the corporation.

This assignment to Dealtry purported to secure payment for services rendered and to be rendered by him to Carlson and to the school. It seems that, of the amount of $2,270 claimed by Dealtry to be due him, the master found $1,965 to be for services rendered the school.

Upon the filing of the application for an injunction a special appearance was entered for Dealtry objecting to the jurisdiction of the court. On the 13th of June the plan of reorganization was confirmed, and on the same day the court ordered that an injunction issue commanding that Deal-try should not:

“1. Interfere with the said Posse School, Inc.’s efforts to reorganize or communicate direction or indirectly in writing or orally with any creditor, stockholder or alumna of the said Posse School, Inc., in respect to any purported information, comment or advice with regard to the proceedings under 77B;

“2. Solicit the payment of any of the said Posse School, Inc.’s unpaid al-umnse pledges or pay further claims against the debtor, regardless of their amount;

“3. Institute any suit at law or in equity in any state court in respect to your claim of title or right to vote 250 shares of the capital stock of the said Posse School, Inc., or any part of them, now standing in the name of ^William F. Carlson.”

The objections to the validity of the injunction are without merit.

Upon approval of the petition under Section 77B, the court was given exclusive jurisdiction of the debtor and its property during the pendency of the proceedings. By Section 262 of the Judicial Code, 28 U.S.C.A. § 377, the court had a' general power to enjoin in aid of its jurisdiction, and by Section 2(15) of the Bankruptcy Act, 11 U.S.C.A. § 11(15), it was expressly given authority “to make such orders, issue such process and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this title.” Suits to enforce a lien upon the assets of the debtor may be restrained. 77B(c) (10), 11 U.S.C.A. § 207(c) (10). Having acquired exclusive- jurisdiction the court had power to issue necessary orders to protect its jurisdiction and to effect the object of the proceedings free from interference. Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110.

As was said in Re Schroeder Hotel Co., 7 Cir., 86 F.2d 491, 493, “Obviously, the court, in view of the purpose of the act and its express provisions, has the power [473]*473to make effective the jurisdiction granted by Congress under the constitutional power in bankruptcy and to prohibit acts of parties before it, tending to prevent the exercise of the jurisdiction and the achievement of its purposes.”

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Bluebook (online)
100 F.2d 470, 1938 U.S. App. LEXIS 2685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dealtry-v-posse-school-inc-ca1-1938.