In re Mitteldorfer

17 F. Cas. 534, 3 Nat. Bank. Reg. 39

• Court: U.S. Circuit Court for the District of Virginia
• Decided: May 15, 1869
• Status: Published

Opinion

CHASE, Circuit Justice.

It appears in this case, that Moses Mitteldorfer, one of the bankrupts, filed with the register a claim in behalf of Rosalie Marcus for six thousand eight hundred and forty dollars. This claim proved by the oath of Mitteldorfer, was-referred together with the others against the estate of the bankrupts by Register Bond, to the assignees, Andrew Rutherglen and Horace L. Kent. Upon examination, some of the claims were allowed, and others rejected. The claim of Mitteldorfer, in behalf of Mrs. Marcus, was among the rejected claims, and with the others, was returned to the register for further proof if any could be made.

In this state of facts, a petition was presented to the district judge, for an order directing the assignees to >pay a dividend on this claim to Mitteldorfer . as trustee, equivalent to that paid on the admitted claims. This dividend was 20 per cent, on six thousand eight hundred and forty dollars, and amounted to one thousand three hundred and sixty-eight dollars. The first order to this effect was made on February 20, 1869. This order not having been complied with by the assignees, a peremptory order was made on March 30, 1869, reciting the original order, and requiring a compliance with it

The object of this petition is to obtain a revision and reversal of these orders. The act in the 22nd and 23rd sections, requires that the proof of claims be made before the register, or commissioner, and transmitted to the assignee, who is to examine the same and compare it with books and accounts of the bankrupts, and register the names of the creditors who have proved their claims.

This seems to have been done in the bankruptcy under consideration. The claim of Mitteldorfer as trustee for Mrs. Marcus, was sworn to before the register, and transmitted to the assignees, and upon examination rejected by them and returned to the register to be held, for further proof. No further' proof in this claim seems to have been offered, but Mitteldorfer presented his petition directly to the district judge for the orders referred to.

It does not appear that due notice of this petition was given to the assignees, or that opportunity was given them to contest the claim.

It is not doubted that the district court has power, upon the petition of any creditor whose debt has been rejected, to revise the decision of the assignee rejecting. Hut the mode of proceeding in the present case seems to me to have been irregular. The assignees should have an opportunity to answer the petition and contest the claim, and if upon consideration the court had determined that it should be allowed, an order should have been made requiring the assignees to place it upon the list of admitted claims, and to pay dividend accordingly. It does not appear to me clear that one of the bankrupts should be allowed to represent any claim against the estate; but I leave this matter for the present to the consideration of the district judge.

The order complained of will be reversed, and the case remanded for further proceedings.

[See Cases Nos. 9,675 and 12,175.]