In re Godwin

E.D. Louisiana

In re Godwin

21 F.2d 253, 1926 U.S. Dist. LEXIS 1778

DecidedDecember 14, 1926

StatusPublished

This text of 21 F.2d 253 (In re Godwin) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Godwin, 21 F.2d 253, 1926 U.S. Dist. LEXIS 1778 (E.D. La. 1926).

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Opinion

BURNS, District Judge.

A petition for review is filed here by Paul W. Maloney, Esq., attorney for the bankrupt. In proceedings before the referee, looking to the settlement of the trustee’s account, he has filed an opposition, claiming that the trustee has erroneously [254]*254omitted from the account his claim for $25 as a reasonable fee for preparing the schedules. and representing the bankrupt, and for reimbursement of $20 advanced by him on behalf of the bankrupt for costs of court when the schedules were filed on April 18, 1924. The referee made the order complained of, dismissing his opposition, because he had no proof of claim, or filed no claim, within one year of the adjudication.

It appears from the schedules that the only asset surrendered was an item on “Personal Property, Schedule B-2, A — Gash on •hand,” reading “With Yazoo & Mississippi Yalley Railroad as security as employe, $82.” On October 9,1922, the referee made an order directing the railroad company to pay this .amount over to the trustee for administration. The bankrupt’s attorney, Mr. Maloney, resisted the order on the ground that under the terms of his employment the bankrupt would lose his position with the railroad company if the indemnity deposit were withdrawn. Upon a review of this order of. the referee, June 25,1926,1 sustained the referee and dismissed the petition for review.

Accordingly the trustee collected the amount. On September 10, 1926, the trustee filed his account, omitting the attorney’s claim as first stated above. Under these circumstances, peculiar to the case, the attorney cannot be considered as guilty of laches, and is equitably entitled to relief. The filing of such claim by the attorney in this estate, where the single asset was not available to the trustee, except after judicial proceeding, would have been but a vain gesture.

Accordingly the order complained of will be vacated and set aside, and the case remanded to the referee for further proceedings, in which the petitioner for review may be permitted to make proof of his claim, and, if proven, the trustee’s account amended, and the attorney paid according to his rank.

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BURNS, District Judge.

A petition for review is filed here by Paul W. Maloney, Esq., attorney for the bankrupt. In proceedings before the referee, looking to the settlement of the trustee’s account, he has filed an opposition, claiming that the trustee has erroneously [254]*254omitted from the account his claim for $25 as a reasonable fee for preparing the schedules. and representing the bankrupt, and for reimbursement of $20 advanced by him on behalf of the bankrupt for costs of court when the schedules were filed on April 18, 1924. The referee made the order complained of, dismissing his opposition, because he had no proof of claim, or filed no claim, within one year of the adjudication.

It appears from the schedules that the only asset surrendered was an item on “Personal Property, Schedule B-2, A — Gash on •hand,” reading “With Yazoo & Mississippi Yalley Railroad as security as employe, $82.” On October 9,1922, the referee made an order directing the railroad company to pay this .amount over to the trustee for administration. The bankrupt’s attorney, Mr. Maloney, resisted the order on the ground that under the terms of his employment the bankrupt would lose his position with the railroad company if the indemnity deposit were withdrawn. Upon a review of this order of. the referee, June 25,1926,1 sustained the referee and dismissed the petition for review.

Accordingly the trustee collected the amount. On September 10, 1926, the trustee filed his account, omitting the attorney’s claim as first stated above. Under these circumstances, peculiar to the case, the attorney cannot be considered as guilty of laches, and is equitably entitled to relief. The filing of such claim by the attorney in this estate, where the single asset was not available to the trustee, except after judicial proceeding, would have been but a vain gesture.

Accordingly the order complained of will be vacated and set aside, and the case remanded to the referee for further proceedings, in which the petitioner for review may be permitted to make proof of his claim, and, if proven, the trustee’s account amended, and the attorney paid according to his rank.

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Bluebook (online)

21 F.2d 253, 1926 U.S. Dist. LEXIS 1778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-godwin-laed-1926.