In the Matter of Muntz Tv, Inc., Debtors. R. H. And M. Wiener v. C. Wylie Allen and Floyd G. Dana, the Trustees of Muntz Tv, Inc.

Seventh Circuit

In the Matter of Muntz Tv, Inc., Debtors. R. H. And M. Wiener v. C. Wylie Allen and Floyd G. Dana, the Trustees of Muntz Tv, Inc.

225 F.2d 493, 1955 U.S. App. LEXIS 4446

CourtCourt of Appeals for the Seventh Circuit

DecidedAugust 10, 1955

Docket11377_1

StatusPublished

Cited by3 cases

This text of 225 F.2d 493 (In the Matter of Muntz Tv, Inc., Debtors. R. H. And M. Wiener v. C. Wylie Allen and Floyd G. Dana, the Trustees of Muntz Tv, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In the Matter of Muntz Tv, Inc., Debtors. R. H. And M. Wiener v. C. Wylie Allen and Floyd G. Dana, the Trustees of Muntz Tv, Inc., 225 F.2d 493, 1955 U.S. App. LEXIS 4446 (7th Cir. 1955).

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FINNEGAN, Circuit Judge.

Trustees-appellees, Allen and Dana of Muntz TV, Inc., principal debtor under Chapter X, Bankruptcy Act¹ proceedings were granted an order below against appellants, Max Wiener, landlord, and Ralph H. Wiener, directing those persons to turn over $661.67. That sum represented the balance of $3,000 deposited “as security for the full and faithful performance of” a lease running from the Wieners to Muntz for premises located in Jackson Heights, New York.

Ralph H. Wiener’s communication, on his law office letterhead, to' the district judge follows:

“As illness and confinement to my home prevent my attendance in your court on November 16, 1954, to oppose a petition made by the Trustees and returnable on that date for a turnover of a leasehold security deposit allegedly held by myself and M. Wiener, I am enclosing the original of an Affidavit of Max Wiener which I wish would be marked and read as submitted in opposition to the Trustees’ said petition. A copy of the said answering Affidavit has been served by mail upon the Attorney for the Trustees.

“Thank you.”

In the affidavit, mentioned in that letter, Max Wiener requested a hearing in the Federal District Court, Southern District of New York where he resides, and the leased property is located, because of advanced age and illness of R. H. Wiener. The affiiant stated that only he and R. H. possessed personal knowledge of the matter.

Obviously on this record there is absent any question of notice to the Wieners. We think the letter and affidavit, disclosing no challenge to jurisdiction, plenary or summary, waived jurisdictional issues. Cline v. Kaplan, 1944, 323 U.S. 97, 99, 65 S.Ct. 155, 89 L.Ed. 97. Ordering the turnover of $661.77 and allowing the Wieners $2,338.23 out of the security deposit totaling $3,000 was correct. In re Cuyahoga Finance Co., 6 Cir., 1943, 136 F.2d 18. In his affidavit Max Wiener admitted the deposit was for security and the court below rightly-tested its findings of fact and conclusions of law on that point.

Because we are affirming the district court’s order entered November 16, 1954, challenged here by appellants, it is unnecessary to discuss the trustees’ motion to dismiss this appeal.

After studying this record, two briefs filed by appellants and the brief for appellees, we are satisfied that this Case presents facts readily distinguishable from those presented by In re Muntz TV, Inc. (W. G. Embry and Fort Worth National Bank v. Allen and Dana), 7 Cir., 225 F.2d 489.

We have considered all of appellants’ contentions and find them without merit. The judgment of the district court is affirmed.

Affirmed.

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FINNEGAN, Circuit Judge.

Trustees-appellees, Allen and Dana of Muntz TV, Inc., principal debtor under Chapter X, Bankruptcy Act¹ proceedings were granted an order below against appellants, Max Wiener, landlord, and Ralph H. Wiener, directing those persons to turn over $661.67. That sum represented the balance of $3,000 deposited “as security for the full and faithful performance of” a lease running from the Wieners to Muntz for premises located in Jackson Heights, New York.

Ralph H. Wiener’s communication, on his law office letterhead, to' the district judge follows:

“As illness and confinement to my home prevent my attendance in your court on November 16, 1954, to oppose a petition made by the Trustees and returnable on that date for a turnover of a leasehold security deposit allegedly held by myself and M. Wiener, I am enclosing the original of an Affidavit of Max Wiener which I wish would be marked and read as submitted in opposition to the Trustees’ said petition. A copy of the said answering Affidavit has been served by mail upon the Attorney for the Trustees.

“Thank you.”

In the affidavit, mentioned in that letter, Max Wiener requested a hearing in the Federal District Court, Southern District of New York where he resides, and the leased property is located, because of advanced age and illness of R. H. Wiener. The affiiant stated that only he and R. H. possessed personal knowledge of the matter.

Obviously on this record there is absent any question of notice to the Wieners. We think the letter and affidavit, disclosing no challenge to jurisdiction, plenary or summary, waived jurisdictional issues. Cline v. Kaplan, 1944, 323 U.S. 97, 99, 65 S.Ct. 155, 89 L.Ed. 97. Ordering the turnover of $661.77 and allowing the Wieners $2,338.23 out of the security deposit totaling $3,000 was correct. In re Cuyahoga Finance Co., 6 Cir., 1943, 136 F.2d 18. In his affidavit Max Wiener admitted the deposit was for security and the court below rightly-tested its findings of fact and conclusions of law on that point.

Because we are affirming the district court’s order entered November 16, 1954, challenged here by appellants, it is unnecessary to discuss the trustees’ motion to dismiss this appeal.

After studying this record, two briefs filed by appellants and the brief for appellees, we are satisfied that this Case presents facts readily distinguishable from those presented by In re Muntz TV, Inc. (W. G. Embry and Fort Worth National Bank v. Allen and Dana), 7 Cir., 225 F.2d 489.

We have considered all of appellants’ contentions and find them without merit. The judgment of the district court is affirmed.

Affirmed.

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225 F.2d 493, 1955 U.S. App. LEXIS 4446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-muntz-tv-inc-debtors-r-h-and-m-wiener-v-c-wylie-ca7-1955.

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