Tom Samuels, Trustee of Future Manufacturing Cooperative, Inc., a Corporation v. Kockos Bros., Ltd.

In bankruptcy proceedings pertaining to the insolvent estate of Future Manufacturing Cooperative, Inc., bankrupt, a referee in bankruptcy declared an attachment lien of a creditor of the bankrupt to be null and void. Upon a petition to review the referee’s order the United States District Court for the Northern District of California, Southern Division, 165 F. Supp. 11 , vacated and set aside the referee’s order on the ground that the two-year period of limitations for actions taken by trustees in bankruptcy had expired. Tom Samuels, trustee in bankruptcy of said banknxpt and appellant herein, timely filed an appeal to this coux't which has jurisdiction under section 24 of the Bankruptcy Act, 11 U.S.C.A. § 47 , and 28 U.S. C.A. § 1291.

The following facts are shown by the record.

Prior to January, 1956, Future Manufacturing Cooperative, Inc., herein called the bankrupt, was engaged in the grocery business in San Jose, California. On January 3, 1956, a fire occurred on the bankrupt’s premises completely destroying its stock in trade. At that time the bankrupt had a policy of insurance with the Canadian Fire Insurance Company in the sum of $15,000. The loss from the fire exceeded…

(dissenting).

I am in accord with my brothers in their refusal to approve the actions of appellee herein but further I cannot go.

The majority agrees with the court below that the cause of action involved herein is time barred and that appellant misused the bankruptcy court. I am satisfied that the latter conclusion influenced the former and I am unable to agree with either.

A reading of the entire record convinces me that the conduct of appellee was such that it should be held estopped to assert the statute of limitations.

Canadian Fire Insurance Company voluntarily turned over to the receiver the sum of $15,000.00 upon the condition that the receiver would ask and request from the court that all assignments and attachments on said money be released. This condition was never complied with. In fact, compliance was never even attempted. The receiver is an officer of the court ( 11 U.S.C.A. § 1 (22); United States et al., to Use of Merchants & Manufacturers Securities Co. v. Johnson et al. (C.A.8 — 1938), 98 F.2d 462 ) and the injustice giving rise to the instant action thus resulted from the nonfeasance of an officer of the court.

The trial court and the majority of the court…

307 F.2d 147 Tom SAMUELS, Trustee of Future Manufacturing Cooperative, Inc., a corporation, Appellant, v. KOCKOS BROS., LTD., Appellee. No. 17101. United States Court of Appeals Ninth Circuit. July 6, 1962, Certiorari Denied Dec. 10, 1962, See 83 S.Ct. 306. Edward A. Friend, San Francisco, Cal., for appellant. Graham James & Rolph, Francis L. Tetreault, and LaForest E. Phillips, Jr., San Francisco, Cal., for appellee. Before HAMLIN and DUNIWAY, Circuit Judges, and BEEKS, District Judge. HAMLIN, Circuit Judge. 1 In bankruptcy proceedings pertaining to the insolvent estate of Future Manufacturing Cooperative, Inc., bankrupt, a referee in bankruptcy declared an attachment lien of a creditor of the bankrupt to be null and void. Upon a petition to review the referee's order the United States District Court for the Northern District of California, Southern Division, 165 F.Supp. 111 , vacated and set aside the referee's order on the ground that the two-year period of limitations for actions taken by trustees in bankruptcy had expired. Tom Samuels, trustee in bankruptcy of said bankrupt and appellant herein, timely filed an appeal to this court which has jurisdiction under section 24…