In re Moses

E.D. Michigan

In re Moses

17 F. Cas. 889, 6 Nat. Bank. Reg. 181, 1872 U.S. Dist. LEXIS 197

DecidedJanuary 16, 1872

StatusPublished

This text of 17 F. Cas. 889 (In re Moses) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Moses, 17 F. Cas. 889, 6 Nat. Bank. Reg. 181, 1872 U.S. Dist. LEXIS 197 (E.D. Mich. 1872).

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Opinion

LONGYEAR, District Judge.

So much of section 40 of the bankrupt act as is material to the consideration of the question presented, is as follows: “That upon the filing of the petition authorized by the next preceding section, if it shall appear that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, at a court of bankruptcy to be holden at a time to be specified in the order, not less than five days from the service thereof, why the prayer of the petition should not be granted; anu may also, by its injunction, restrain the debtor, and any other person, in the meantime, from making any transfer or disposition of any part of the debtor’s property not excepted by this act from the operation thereof, and from any interference therewith.”

As a court of bankruptcy, this court possesses no general powers to issue injunctions. Its powers in that regard are derived solely from that portion of section 40 above quoted, and such powers are of course limited strictly within the scope of its provisions. The restraining power of the court then is limited in point of time to the period of time expressed by the words “in the meantime,” which I have italicized in the quotation, and those relate manifestly to the period of time between the entering of the order to show cause and the time specified therein for the hearing, as provided in the first part of the quotation. I think the most extended construction that can be given to these words is, that they are intended to cover the whole period up to such time as a hearing and adjudication shall be had upon the petitionfor adjudication of bankruptcy. I can see no warrant whatever for extending their meaning beyond that. It is true that in this case the injunction is in the ordinary form and reads: “Until the further order of the court.” But this clause must be read in the light of the authority under which the writ was issued, and being so read its meaning is as follows: “Until a hearing and adjudication shall be had upon the petition for adjudication of bankruptcy against Solomon J. Moses.” If creditors, on filing petition for adjudication of bankruptcy, desire to restrain parties from interfering with the debtor’s property beyond the time when an adjudication may be obtained, they must do so by invoking the general powers of a court of equity. This court does not possess such power. See In re Metzler [Case No. 9,512]; Irving v. Hughes [Id. 7,076]; In re Kintzing [Id. 7,833]; Creditors v. Cozzens [Id. 3,378]; In re Fuller [Id. 5,348].

The acts complained of in these cases having been done after the restraining power of [890]*890the injunction had ceased to operate, the orders to show cause must be discharged, and the petitions and proceedings against the said Lang and Hanaw for contempt must be dismissed. with costs to the said Lang and Ha-naw, including an attorney fee of twenty dollars (being ten dollars in each case), to be paid by the assignee out of the funds of the estate of the said bankrupt in his hands.

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LONGYEAR, District Judge.

So much of section 40 of the bankrupt act as is material to the consideration of the question presented, is as follows: “That upon the filing of the petition authorized by the next preceding section, if it shall appear that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, at a court of bankruptcy to be holden at a time to be specified in the order, not less than five days from the service thereof, why the prayer of the petition should not be granted; anu may also, by its injunction, restrain the debtor, and any other person, in the meantime, from making any transfer or disposition of any part of the debtor’s property not excepted by this act from the operation thereof, and from any interference therewith.”

As a court of bankruptcy, this court possesses no general powers to issue injunctions. Its powers in that regard are derived solely from that portion of section 40 above quoted, and such powers are of course limited strictly within the scope of its provisions. The restraining power of the court then is limited in point of time to the period of time expressed by the words “in the meantime,” which I have italicized in the quotation, and those relate manifestly to the period of time between the entering of the order to show cause and the time specified therein for the hearing, as provided in the first part of the quotation. I think the most extended construction that can be given to these words is, that they are intended to cover the whole period up to such time as a hearing and adjudication shall be had upon the petitionfor adjudication of bankruptcy. I can see no warrant whatever for extending their meaning beyond that. It is true that in this case the injunction is in the ordinary form and reads: “Until the further order of the court.” But this clause must be read in the light of the authority under which the writ was issued, and being so read its meaning is as follows: “Until a hearing and adjudication shall be had upon the petition for adjudication of bankruptcy against Solomon J. Moses.” If creditors, on filing petition for adjudication of bankruptcy, desire to restrain parties from interfering with the debtor’s property beyond the time when an adjudication may be obtained, they must do so by invoking the general powers of a court of equity. This court does not possess such power. See In re Metzler [Case No. 9,512]; Irving v. Hughes [Id. 7,076]; In re Kintzing [Id. 7,833]; Creditors v. Cozzens [Id. 3,378]; In re Fuller [Id. 5,348].

The acts complained of in these cases having been done after the restraining power of [890]*890the injunction had ceased to operate, the orders to show cause must be discharged, and the petitions and proceedings against the said Lang and Hanaw for contempt must be dismissed. with costs to the said Lang and Ha-naw, including an attorney fee of twenty dollars (being ten dollars in each case), to be paid by the assignee out of the funds of the estate of the said bankrupt in his hands.

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Bluebook (online)

17 F. Cas. 889, 6 Nat. Bank. Reg. 181, 1872 U.S. Dist. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moses-mied-1872.