Van Norden v. A. C. Wagy & Co.

GILBERT, Circuit Judge (after stating the facts as above). The pendency of the involuntary petition did not deprive the court below of jurisdiction to receive and consider the voluntary petition, and the fact that adjudication was made under the latter did not preclude jurisdiction to protect the creditors under the former. International Silver Co. v. New York Jewelry Co. (C. C. A.) 233 F. 945. It is held that, unless some question of the preservation of the rights under the earlier involuntary petition arises, there should be an adjudication under the subsequent voluntary petition, In re Lachenmaier (C. C. A.) 203 F. 32; In re Anderson Motor Co. (D. C.) 18 F.(2d) 1001; and that as a general rule'the adjudication should be made in the voluntary ease “since it is quicker, less expensive, and less likely to lead to delay and unnecessary litigation.” In re New Chattonooga Hardware Co. (D. C.) 190 F. 241. It results that, if the appellant failed to present to the court below ground for vacating the adjudication in the voluntary proceeding, he was entitled to no relief in that court on either of his petitions. It remains, therefore, to inquire whether the appellant was erroneously denied the order to show cause why the adjudication on the voluntary petition should not be set aside and vacated and the receivers discharged. We think it clear that there was no error. [11] In the first place, the application was for an order directed only to the receivers. It seems unnecessary to cite authorities to' the proposition that in the proceeding in question the receivers were not the representatives either of the creditors or of the bankrupt, parties whoso presence was absolutely essential to the determination of the question presented by the petition. Notice to all parties who had appeared was indispensable. Tardy’s Smith on Receivers (2d Ed.) 2106. In the second place, it is a fact decisive of the present appeals that a creditor has in no case a right to maintain a petition to vacate an adjudication of bankruptcy made in a voluntary proceeding. In re Ives (C. C. A.) 113 F. 911; In re Pennington & Co. (D. C.) 228 F. 388. In re United Grocery Co. (D. C.) 239 F. 1016; In re Ann Arbor Mach. Co. (C. C. A.) 274 F. 24. The orders of the court below are affirmed.