Oliver v. Staples & Pfeiffer

NOURSE, J.

Plaintiff sued and recovered judgment against the defendants for the sum of $538.49 in an action to recover a preference under the provisions of sections 60a and 60b of the National Bankruptcy Act (U. S. Comp. Stats., see. 9644). Plaintiff alleged and the court found that he

[572]

was the duly appointed and acting trustee in bankruptcy of the Commercial Brass Foundry, a

partnership;

that the bankrupt owed the defendants, a partnership composed of the individuals named therein, the sum of $538.49 upon a general antecedent debt, and that during the four months preceding the filing of the petition in bankruptcy this debt was paid off by the delivery to the defendants of materials of equal value. In fact, materials in excess of the debt had been delivered, but on the 7th of April, 1921, a short time before the filing of the petition, a settlement was reached between the bankrupt and the defendants by their payment of the sum of $160 to the bankrupt. It also appeared that at the time of the transfer of these materials the bankrupt was badly involved with other creditors, a fact which was well known to the defendants, and that they had been warned of the condition of the bankrupt and that the acceptance of materials in cancellation of their debt would be treated as a void preference.

On this appeal we are at a loss to know just how to treat the appealing parties. The notice of appeal was given by the attorneys who are presenting it before this court and stated that the “defendants” in the above-entitled action appealed from the judgment rendered against them. They also signed as attorneys for these defendants. Now for the first time they, without any order, change the caption of the cause so as to make it appear that the defendant partnership separately was the only party sued. In the briefs which they have filed they have signed as attorneys for the defendant, using the singular, but whether they are appearing for the partnership or for one of the two individuals composing the partnership does not appear. If eotinsel are appearing for the defendant partnership, their objection that the individual defendants were not properly sued is of course wholly beside the question, because it is of no interest to one defendant that other parties are improperly joined in sharing the burden of the judgment. If counsel were appearing for either of the two individuals then they might be heard upon the point that such individuals were not properly sued, but they have not elected to so appear.