In re Metzger Toy & Novelty Co.

W.D. Arkansas

In re Metzger Toy & Novelty Co.

114 F. 957, 1902 U.S. Dist. LEXIS 337

DecidedApril 28, 1902

StatusPublished

This text of 114 F. 957 (In re Metzger Toy & Novelty Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Metzger Toy & Novelty Co., 114 F. 957, 1902 U.S. Dist. LEXIS 337 (W.D. Ark. 1902).

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Opinion

ROGERS, District Judge

(after stating the facts as above). It is insisted by the attornej's for the claimants that the $472.70 having been received by the claimants under an execution, and in a strictly and purely adversary proceeding, and with no knowledge of the insolvency of Rudolph Metzer, Sr., upon the part of the claimant, said payment was not, therefore, such a payment as, under the bankrupt law, constituted a preference, which should be surrendered before the balance of the claim was allowed; and in support of this doctrine is cited the case of Wilson v. Bank, 17 Wall. 473, 21 L. Ed. 723, and other cases following and approving that decision, under the bankrupt law of 1867. In the opinion of the court, the question is settled in the following cases: Pirie v. Trust Co., 182 U. S. 439, 21 Sup. Ct. 906, 45 L. Ed. 1171; Wilson v. Nelson, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. Ed. -, 7 Am. Bankr. R. 142.

The question involved in this case turns upon the meaning of the words “procured or suffered,” and the meaning of the word “transfer,” as contained in section 60a of the bankrupt law of 1898; and Mr. Justice McKenna, in the former case, in considering the meaning of the word “transfer,” as used in that section, has used this language:

“ ‘Transfer’ is defined to be not only the sale of property, but ‘every other mode of disposing or parting with property.’ All technicality and narrowness of meaning is precluded. The word is used in its most comprehensive sense, and is intended to include every means and manner by which property can pass from the ownership and possession of another, and by which the result forbidden by the statute may be accomplished, — a preference enabling a creditor ‘to obtain a greater percentage of his debt than any other creditors of the same class.’ ”

But the question at bar is more fully and completely discussed in the second case cited, and to that little' can be added. It points out [959]*959the distinction between the bankrupt law of 1867 and the bankrupt law of 1898, and specificajly declines to follow Wilson v. Bank, 17 Wall. 473, 21 L. Ed. 723, and for reasons stated in the opinion. That authority is binding upon this court, and I am constrained to believe, by the force of its reasoning, announces the correct principle of construction of that section of the bankrupt law under consideration.

The action of the referee is therefore affirmed, and the order will be that unless the Bloch Queensware Company surrenders the sum of money received by it from the sheriff of Sebastian county, to wit, the sum of $472.70, to the trustee of the Metzger Toy & Novelty Company, within ten days, its claim be disallowed, and that, if the same be surrendered within 10 days from the date of this order, the referee enter an order allowing the Bloch Queensware Company’s claim for the full amount.

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ROGERS, District Judge

(after stating the facts as above). It is insisted by the attornej's for the claimants that the $472.70 having been received by the claimants under an execution, and in a strictly and purely adversary proceeding, and with no knowledge of the insolvency of Rudolph Metzer, Sr., upon the part of the claimant, said payment was not, therefore, such a payment as, under the bankrupt law, constituted a preference, which should be surrendered before the balance of the claim was allowed; and in support of this doctrine is cited the case of Wilson v. Bank, 17 Wall. 473, 21 L. Ed. 723, and other cases following and approving that decision, under the bankrupt law of 1867. In the opinion of the court, the question is settled in the following cases: Pirie v. Trust Co., 182 U. S. 439, 21 Sup. Ct. 906, 45 L. Ed. 1171; Wilson v. Nelson, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. Ed. -, 7 Am. Bankr. R. 142.

The question involved in this case turns upon the meaning of the words “procured or suffered,” and the meaning of the word “transfer,” as contained in section 60a of the bankrupt law of 1898; and Mr. Justice McKenna, in the former case, in considering the meaning of the word “transfer,” as used in that section, has used this language:

“ ‘Transfer’ is defined to be not only the sale of property, but ‘every other mode of disposing or parting with property.’ All technicality and narrowness of meaning is precluded. The word is used in its most comprehensive sense, and is intended to include every means and manner by which property can pass from the ownership and possession of another, and by which the result forbidden by the statute may be accomplished, — a preference enabling a creditor ‘to obtain a greater percentage of his debt than any other creditors of the same class.’ ”

But the question at bar is more fully and completely discussed in the second case cited, and to that little' can be added. It points out [959]*959the distinction between the bankrupt law of 1867 and the bankrupt law of 1898, and specificajly declines to follow Wilson v. Bank, 17 Wall. 473, 21 L. Ed. 723, and for reasons stated in the opinion. That authority is binding upon this court, and I am constrained to believe, by the force of its reasoning, announces the correct principle of construction of that section of the bankrupt law under consideration.

The action of the referee is therefore affirmed, and the order will be that unless the Bloch Queensware Company surrenders the sum of money received by it from the sheriff of Sebastian county, to wit, the sum of $472.70, to the trustee of the Metzger Toy & Novelty Company, within ten days, its claim be disallowed, and that, if the same be surrendered within 10 days from the date of this order, the referee enter an order allowing the Bloch Queensware Company’s claim for the full amount.

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114 F. 957, 1902 U.S. Dist. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-metzger-toy-novelty-co-arwd-1902.

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