Western Pac R.R. Corp. v. Western Pac. R. Co. Metzger v. Western Pac. R. Co.

(dissenting and suggesting a rehearing en banc of all Circuit Judges).

This cause involves the disposition of over $21,000,000. The solution requires application of novel statutory language affecting the fields of bankruptcy and taxes. I have expressed myself heretofore and still feel that the findings of -the lower court do not support the determination made by two judges on the panel here.

I am unable to agree with either the denial of rehearing or the striking of the petitions which ask for a rehearing by the *1013 full complement of Circuit Judges of this Court en banc. Two District Judges and one Circuit Judge constituted the panel which heard the case. As has been pointed out in this serious and important litigation, three District Judges have, respectively, expressed three widely divergent views, while no member of the Court of Appeals has written a line on the merits.

I therefore suggest to the Court of Appeals a rehearing en banc of all the Circuit Judges. For this there is precedent in this Circuit. 1 The practice, as I understand it, substantially accords with that of the Third Circuit, 2 which is admirable. Inasmuch as this might be the court of last resort in this…

' These are appeals from a judgment denying relief to plaintiffs below, who are seeking to recover approximately $17,000,000 from the reorganized The Western Pacific Railroad Company, defendant and appellee. 1 Appellants are The Western Pacific Railroad Corporation (hereinafter sometimes referred to as “Corporation”), its receiver, and three of its preferred stockholders, who intervened to assert Corporation’s claims.

Appellant Corporation, from 1916 until the events which gave rise to this litigation, owned all of the capital stock of The Western Pacific Railroad Company, an operating railroad company. The operating company became financially distressed during the “depression of the early thirties” and in 1935 it filed a petition under Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205 . The court, in that year, placed its affairs in the hands of trustees. In 1939 the Interstate Commerce Commission approved (233 I. C, C. 409) a proposed plan of reorganization, which was thereafter submitted to and approved by the district court in 1940. In re Western Pac. R. Co., 34 F.Supp. 493 . In the plan it was determined, inter alia, that the capital stock of the subsidiary, owned by…

On Petitions for Rehearing

The petitions of the appellant's and inter-venors for á rehearing are denied. Insofar as the petitions seek a rehearing en banc, they are stricken as being without authority in law or in the rules or practice of the court. See Kronberg v. Hale, 9 Cir., 181 F.2d 767 .

197 F.2d 994 51-2 USTC P 9494 WESTERN PAC R.R. CORP. et al. v. WESTERN PAC. R. CO. et al. METZGER et al. v. WESTERN PAC. R. CO. et al. No. 12506. United States Court of Appeals Ninth Circuit. Oct. 29, 1951. Rehearing Denied Jan. 30, 1952. Dissenting Opinion Feb. 18, 1952. Petition for Leave to File Motion, etc., Denied July 9, 1952. Supplemental Dissenting Opinion Sept. 11, 1952. 1 Herman Phleger, Maurice E. Harrison, Moses Lasky, and Brobeck, Phleger & Harrison, all of San Francisco, Cal., Frank C. Nicodemus, Jr., A. Perry Osborn, Norris Darrell and Mahlon Dickerson, all of New York City, Leroy R. Goodrich, Oakland, Cal., for appellant Western Pac. R.R. Corp. 2 Herman Phleger, Maurice E. Harrison, Moses Lasky, and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for appellant Alexis I. duP. Bayard, Receiver. 3 William E. Haudek, Julius Levy, New York City, Webster V. Clark and Rogers & Clark, all of San Francisco Cal., Pomerantz, Levy, Schreiber & Haudek, New York City, and David Friedenrich, San Francisco, Cal., for appellants Metzger et al. 4 Allan P. Matthew, James D. Adams, Robert L. Lipman, Burnham Enersen, Walker Lowry and McCutchen, Thomas, Matthew,…