MARTIN, Circuit Judge.
We would need go to fiction rather than to the case books to find an appropriate parallel to this prolonged litigation. See Jarndyce v. Jarndyce, reported in “Bleak House” by Charles Dickens. The controversy presented by the present appeals evolves from an equity receivership instituted in late 1930, followed by proceedings under section 77B of the Bankruptcy Act and finally by corporate reorganization proceedings under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. The two separate appeals which bring the case to us again at this late date are from an order entered by the United States District Court confirming a plan of reorganization.
For an understanding of the history and background of the case in all phases, we refer to our previous decisions, as follows: In re Inland Gas Corporation [Columbia Gas v. Lockhart] 6 Cir., 1937, 91 F.2d 113; Hamilton Gas Co. v. Inland Gas Corporation (Piney Oil & Gas v. Inland Gas Corp.), 6 Cir., 1939, 102 F.2d 131; In re American Fuel & Power Co., 6 Cir., 1941, 122 F.2d 223; Columbia Gas & Electric Corporation v. United States, 6 Cir., 1945, 151 F.2d 461; Columbia Gas & Electric Corporation v. United States, 6 Cir., 1946, 153 F.2d 101; In re Inland Gas Corporation, 6 Cir., [511]*5111951, 187 F.2d 813; In re Inland Gas Corporation, 6 Cir., 1953, 208 F.2d 13; In re Inland Gas Corporation, 6 Cir., 1954, 211 F.2d 381; In re Inland Gas Corporation, 6 Cir., 1954, 217 F.2d 207; In re Inland Gas Corporation, 6 Cir., 1957, 241 F.2d 374; In re Inland Gas Corporation, 6 Cir., 1959, 262 F.2d 510. The first two above-listed opinions have no relevancy now.
Our opinion reported at 1945, 151 F.2d 461, discloses the historical background; and our last two opinions, entitled “In re Inland Gas Corporation”, reported respectively in 1957, 241 F.2d 374 and in 1959, 262 F.2d 510 relate to, and we think control, the issues directly presented by the present appeals.
At the conclusion of our latest opinion (decided January 15, 1959), reported at 262 F.2d 510, certiorari denied April 27, 1959, Kern v. Columbia Gas System, 359 U.S. 979, 79 S.Ct. 979, 3 L.Ed.2d 928, we stated that United States District Judge Ford had appropriately applied our adjudication set out in 241 F.2d 374, with respect to post-bankruptcy interest and to all other issues before him. The appeals were accordingly dismissed and the judgment of the district court, confirming the plan of reorganization, was affirmed. In that portion of our opinion written by Judge Miller, in which the writer concurred, we held directly that post-bankruptcy interest should not be allowed the public holders of bonds and debentures of the Kentucky Gas and Fuel Corporation.
In proceedings in the United States District Court following remand, Paul Kern filed what he called “Alterations and Modifications” of the Plan of Reorganization which had been confirmed. Kern was not an original investor in the Kentucky bonds and debentures but began buying them in 1941 and continued to increase his holdings until he owned thirty-four percent of the outstanding issue of bonds and debentures. Throughout these lengthy proceedings, this speculator has filed six appeals from the district court’s orders and judgments. At the conclusion of the hearing, the district judge announced his denial and rejection of the proposed petition for alterations and modifications and granted the petition of the Inland Gas Corporation for an order consummating the plan. The present appeals are from that order, which was entered on June 1, 1959.
We are of opinion that the United States District Court correctly and faithfully followed the mandate of this court. A comparison of the proposed alterations and modifications of the Plan of Reorganization with the Plan, which we have heretofore affirmed, clearly reveals that the alterations and modifications under consideration are not merely such, but in totality constitute an altogether new and different proposed plan of reorganization.
At the outset, the so-termed “Alterations and Modifications” entirely eliminate Article I, which discloses the directions of the district court to the Trustee as to the method of drawing the plan and states the principles upon which the reorganization is grounded. Indeed, nothing appears to be left of the confirmed Plan, except the partial description of the reorganization and history of the debtor. Many changes demonstrate that an entirely new plan is presented under the guise of “Alterations and Modifications.” Notation should be made of the following important changes:
(1) The alteration suggested by Kern would forbid the Trustee of Inland Gas Corporation from paying claims and reorganization expenses and fees, and would impel the transfer of all physical properties and cash to the reorganized corporation which would assume the obligation of making such payments;
(2) Article V of the confirmed plan has eliminated therefrom the reorganization value of $10,538,800 upon which the plan is predicated;
(3) The classification of the creditors as set forth in Article YI is so changed that the public creditors of Kentucky, rather than those of Columbia, would [512]*512receive all stock of the reorganized corporation ;
(4) The capitalization of the reorganized corporation is completely changed from 500,000 authorized shares of common stock and a short-term unsecured bank loan not to exceed $4,000,000 to a wholly different capital structure. The proposed complex capital structure consists of $2,530,000 of Series “A” five-and-one-half percent bonds, due October 1, 1971; $470,000 of Series “B” five-and-one-half percent convertible bonds, due October 1, 1971; a $1,250,000 Series “C” five percent first mortgage note, due October 1, 1962; and new stock of the reorganized corporation to be issued in the amount of $4,765,160 par value.
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MARTIN, Circuit Judge.
We would need go to fiction rather than to the case books to find an appropriate parallel to this prolonged litigation. See Jarndyce v. Jarndyce, reported in “Bleak House” by Charles Dickens. The controversy presented by the present appeals evolves from an equity receivership instituted in late 1930, followed by proceedings under section 77B of the Bankruptcy Act and finally by corporate reorganization proceedings under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. The two separate appeals which bring the case to us again at this late date are from an order entered by the United States District Court confirming a plan of reorganization.
For an understanding of the history and background of the case in all phases, we refer to our previous decisions, as follows: In re Inland Gas Corporation [Columbia Gas v. Lockhart] 6 Cir., 1937, 91 F.2d 113; Hamilton Gas Co. v. Inland Gas Corporation (Piney Oil & Gas v. Inland Gas Corp.), 6 Cir., 1939, 102 F.2d 131; In re American Fuel & Power Co., 6 Cir., 1941, 122 F.2d 223; Columbia Gas & Electric Corporation v. United States, 6 Cir., 1945, 151 F.2d 461; Columbia Gas & Electric Corporation v. United States, 6 Cir., 1946, 153 F.2d 101; In re Inland Gas Corporation, 6 Cir., [511]*5111951, 187 F.2d 813; In re Inland Gas Corporation, 6 Cir., 1953, 208 F.2d 13; In re Inland Gas Corporation, 6 Cir., 1954, 211 F.2d 381; In re Inland Gas Corporation, 6 Cir., 1954, 217 F.2d 207; In re Inland Gas Corporation, 6 Cir., 1957, 241 F.2d 374; In re Inland Gas Corporation, 6 Cir., 1959, 262 F.2d 510. The first two above-listed opinions have no relevancy now.
Our opinion reported at 1945, 151 F.2d 461, discloses the historical background; and our last two opinions, entitled “In re Inland Gas Corporation”, reported respectively in 1957, 241 F.2d 374 and in 1959, 262 F.2d 510 relate to, and we think control, the issues directly presented by the present appeals.
At the conclusion of our latest opinion (decided January 15, 1959), reported at 262 F.2d 510, certiorari denied April 27, 1959, Kern v. Columbia Gas System, 359 U.S. 979, 79 S.Ct. 979, 3 L.Ed.2d 928, we stated that United States District Judge Ford had appropriately applied our adjudication set out in 241 F.2d 374, with respect to post-bankruptcy interest and to all other issues before him. The appeals were accordingly dismissed and the judgment of the district court, confirming the plan of reorganization, was affirmed. In that portion of our opinion written by Judge Miller, in which the writer concurred, we held directly that post-bankruptcy interest should not be allowed the public holders of bonds and debentures of the Kentucky Gas and Fuel Corporation.
In proceedings in the United States District Court following remand, Paul Kern filed what he called “Alterations and Modifications” of the Plan of Reorganization which had been confirmed. Kern was not an original investor in the Kentucky bonds and debentures but began buying them in 1941 and continued to increase his holdings until he owned thirty-four percent of the outstanding issue of bonds and debentures. Throughout these lengthy proceedings, this speculator has filed six appeals from the district court’s orders and judgments. At the conclusion of the hearing, the district judge announced his denial and rejection of the proposed petition for alterations and modifications and granted the petition of the Inland Gas Corporation for an order consummating the plan. The present appeals are from that order, which was entered on June 1, 1959.
We are of opinion that the United States District Court correctly and faithfully followed the mandate of this court. A comparison of the proposed alterations and modifications of the Plan of Reorganization with the Plan, which we have heretofore affirmed, clearly reveals that the alterations and modifications under consideration are not merely such, but in totality constitute an altogether new and different proposed plan of reorganization.
At the outset, the so-termed “Alterations and Modifications” entirely eliminate Article I, which discloses the directions of the district court to the Trustee as to the method of drawing the plan and states the principles upon which the reorganization is grounded. Indeed, nothing appears to be left of the confirmed Plan, except the partial description of the reorganization and history of the debtor. Many changes demonstrate that an entirely new plan is presented under the guise of “Alterations and Modifications.” Notation should be made of the following important changes:
(1) The alteration suggested by Kern would forbid the Trustee of Inland Gas Corporation from paying claims and reorganization expenses and fees, and would impel the transfer of all physical properties and cash to the reorganized corporation which would assume the obligation of making such payments;
(2) Article V of the confirmed plan has eliminated therefrom the reorganization value of $10,538,800 upon which the plan is predicated;
(3) The classification of the creditors as set forth in Article YI is so changed that the public creditors of Kentucky, rather than those of Columbia, would [512]*512receive all stock of the reorganized corporation ;
(4) The capitalization of the reorganized corporation is completely changed from 500,000 authorized shares of common stock and a short-term unsecured bank loan not to exceed $4,000,000 to a wholly different capital structure. The proposed complex capital structure consists of $2,530,000 of Series “A” five-and-one-half percent bonds, due October 1, 1971; $470,000 of Series “B” five-and-one-half percent convertible bonds, due October 1, 1971; a $1,250,000 Series “C” five percent first mortgage note, due October 1, 1962; and new stock of the reorganized corporation to be issued in the amount of $4,765,160 par value.
The three above-listed series of new bonds and the mortgage note would be secured by a first-mortgage on all the debtor’s properties and, presumably, would be purchased by the insurance companies and the banks named in the so-called “Alterations”. New stock of the par value $3,265,160 would be issued to public holders of Kentucky bonds and debentures. There would be offered for sale on subscription rights to public holders of Kentucky bonds and debentures $694,650 par value of the new stock and $805,350 par value of that stock would presumably be sold to underwriters Dempsey & Company and Byllesby & Company who proposed, subject to specified conditions, to purchase at par all the new common stock which Kentucky creditors receive and desire to sell and all the new stock which Kentucky creditors would be entitled to purchase under the right to subscribe but did not desire to purchase;
(5) The proceeds from the sale of bonds and new stock, together with the cash balances of the Trustee, would be used to pay reorganization fees and other expenses and certain priority claims; to pay the American Fuel & Power Company notes with post-bankruptcy interest ; to pay the secured claims of Columbia against Inland Gas Corporation, with post-bankruptcy interest; and to pay the unsecured claims of Columbia against Inland Gas Corporation without post-bankruptcy interest;
(6) Finally, the so-called “Alterations and Modifications” provide further that two insurance companies and a banking institution would supply the debt financing for which Kidder, Peabody and Company would be paid a fee of $45,000 for sex’vices. All the financing proposals, however, were made subject to contingencies. For example, the Home Life Insui'ance Company proposal letter states that the proposed financing by Kidder, Peabody and Company is in principle satisfactory to it, but that any binding commitment on its part would be subject to execution of a purchase agreement and indenture satisfactory to it and to its counsel. Moreover, the commitment of Dempsey & Company and Byllesby & Company to purchase at par all stock of the reorganized corporation which the public holders of Kentucky securities desired to sell or for which they refused to subscribe is hedged with a time limitation of August 31, 1959, which has already expired.
The statute with which the appellants contend the district court failed to comply is section 222 of the Bankruptcy Act [11 U.S.C.A. § 622], 52 Stat. 898: “A plan may be altered or modified, with the approval of the judge, after its submission for acceptance and before or after its confirmation if, in the opinion of the judge, the alteration or modification does not materially and adversely affect the interests of creditors or stockholders. If the judge finds that the proposed alteration or modification, filed with his approval, does materially and adversely affect the interests of creditors or stockholders, he shall fix a hearing for the consideration, and a subsequent time for the acceptance or rejection, of such alteration or modification. The requirements in regard to notice of heai'ing, to submission to the Securities and Exchange Commission, to acceptance, to filing and hearing of objections to confirmation and to the confii'mation, as prescribed in Article [subchapter] VII of this chapter in regard to the plan [513]*513proposed to be altered or modified, shall be complied with.” [Italics added.]
Judge Ford stated that, had he sustained the position assumed by appellants and permitted the filing of their alterations or modifications, we would be “stalling fresh, turning around and going back on another theory.” We think the district judge did not abuse the discretion expressly granted him by the statute; but, on the contrary, we consider that he used sound common-sense, practical judgment in declining to permit an altogether new plan to be submitted, under the guise of alterations and modifications, in lieu of a sound plan already confirmed by him and approved by this appellate court, with certiorari denied by the Supreme Court of the United States. In In re Diversey Bldg. Corp. (Diversey Building Corporation v. Metropolitan Trust Co.), 141 F.2d 65, the United States Court of Appeals for the Seventh Circuit affirmed the district court, stating its belief to be that the Congress did not intend that a debtor corporation should be permitted to ask for a radical change of a plan of reorganization after the plan had been confirmed and was being executed under the supervision of the court. The subsection of the statute providing that changes and modifications may be proposed before or after the consummation of a plan of reorganization must be construed, the court asserted, with other pertinent subsections in order to understand the congressional intent. The subsection was interpreted to mean that changes and modifications after the plan is confirmed, refer to such changes as will better aid in carrying out the plan which has been finally confirmed, and does not mean such changes or modifications as will materially alter the property rights established by the decree of confirmation. In no event, the court added, should any change be made without the consent of the court. The fact that the Diversey case was decided under section 77B of the Bankruptcy Act does not affect applicability of its principles to the situation confronting us here.
Country Life Apartments v. Buckley, 2 Cir., 145 F.2d 935, 937, was a case of reorganization under Chapter X. There, the district court found that, at a confirmation hearing, the proposed amendments constituted a new plan and, for that reason, the court refused to permit such amendments to be filed. This judgment was affirmed on appeal. Judge Clark said: “Appellants’ proposals filed by way of objections, however, differed so greatly from the trustee’s plan that they could not possibly be treated as a mere modification. * * * Upon ascertaining this fact, the District Court was not required to listen to further arguments on the merits of the proposals, and hence committed no error in denying appellants further opportunity to be heard.”
Knight v. Wertheim, 2 Cir., 158 F.2d 838, is regarded by appellants as strong authority in their behalf. We do not agree with their argument for, in that case, Judge Learned Hand said that the proposed changes were not so radical as to fall within the ambit of the court’s previous decision in the Country Life Apartments v. Buckley case. Comparison of the facts of the Knight case with those in this litigation will show the cases to be plainly differentiable.
Moreover, in Prudence Bonds Corporation v. City Bank Farmers Trust Co., 2 Cir., 186 F.2d 525, 528, Judge Hand impressively said: “* * * the court may never under the guise of ‘alteration’ or ‘modification’ substitute an entirely new ‘plan’ in place of the original; although what is a line between a substitute and an ‘alteration’ or a ‘modification’ is necessarily left at large. * * * The question is one of discretion, though of a discretion which should be sparingly exercised, * * * unless the circumstances peremptorily demand it. * * * We cannot deny that the view which we now take may lead to abuse; it is often exceedingly difficult for a bankruptcy court to resist the importunities, usually unopposed, of those who wish to keep the ‘revived debtor’ indefinitely beneath its aegis; and our review of a discretion, [514]*514which we may think to have been unwisely exercised, is not a very effective remedy. We can do no more than declare, for whatever weight it may have, that we deem the long delay which so often occurs between the order of ‘confirmation’ and the ‘final order’ a major abuse, and that a judge who superintends such a proceeding should feel himself charged with an affirmative duty to insist upon its early conclusion.”
The contrast of the simple alteration approved in Knight v. Wertheim, supra, with the alterations and modifications proposed here is most striking. It would seem that any careful analysis of the plan which has been confirmed with the result reached should the alterations and modifications of Kern be adopted clearly demonstrates that his offering constitutes actually a completely new and altogether different plan.
The confirmed plan embraces a statement of principles derived from directives of the district court and the decisions of that court denying post-bankruptcy interest to the public creditors of Kentucky Fuel Gas Corporation, while the proposed alterations eliminate those principles and award post-bankruptcy interest to the public creditors of that corporation. The plan is based upon a judicially determined valuation, while the alteration is not predicated upon any definitive valuation of Inland.
The plan calls for a simple capitalization of common stock and an unsecured bank loan: the alteration provides for a complicated capitalization of common stock and the issuance of three series of bonds and a mortgage note, all secured by a first mortgage on all the properties of the reorganized corporation. Under the confirmed plan, the capitalization of the reorganized corporation is assured by an unequivocal offer from a lender, while the finances proposed by the alterations and modifications is subject to several contingencies; and the underwriting offer to purchase stock of the reorganized corporation has already expired by prescribed time limitation. The plan provides for payment in cash of the principal amount of the claims of Kentucky creditors and the issuance of stock to Columbia: the alteration would require the payment of certain claims of Columbia in cash and the issuance to public creditors of Kentucky of stock for their claims. The plan calls for payment of claims and reorganization fees and expenses by the Trustee for Inland Gas Corporation, while the alteration proposes that these be paid by the reorganized corporation.
District Judge Ford aptly stated that section 222 authorizes modification, but does not authorize “stopping in the middle of a stream and starting a new plan with all of its problems afresh.” We think that he wisely said, also, that the two plans “are not kin in any respect in their major problems”, being incongruous rather than congruous.
The appellees are correct in their assertion that the proposed “alterations and modifications” constitute an attempt to relitigate matters previously decided by this court and that district judge did not abuse his discretion in denying them consideration.
In concluding what we hope will be our last words concerning this protracted litigation, we cannot refrain from commending the able, experienced and conscientious district judge, Honorable H. Church Ford, for his patient consideration throughout these many years of the trying and often complicated issues which have been presented to him for determination. We think that he has displayed wisdom in bringing this reorganization case, at “long last”, to a successful conclusion, and deserves to rest upon his hard-earned laurels.
The judgment of the district court from which the appeals have been taken is affirmed.