J. Clarke Smith and Margaret D. Smith v. Edwin E. Hill

On March 1, 1952, appellants sold certain real and personal property to appellee under a conditional sales contract, the validity of which is not questioned. Appellee defaulted. On June 2, 1961, appellants brought suit in the Superior Court of the State of California to foreclose appellee’s rights under the contract. The Superior Court appointed a receiver who took possession of the property. On September 27, 1961 (within four months of the filing of the state court action) appellee filed a petition in the United States District Court under Chapter XI of the Bankruptcy Act. On October 25, 1961, the referee in bankruptcy ordered the debtor restored to possession, and the property was surrendered by the state court receiver. Appellants filed a petition to reclaim, challenging the authority of the referee to take possession of the property. The petition was denied by the referee and the District Court affirmed.

Appellants failed to file a petition for review within ten days of the entry of the referee’s order directing surrender of the property and, as noted, instead filed a petition to reclaim. As a result, contends appellee, the order became final, 1 and appellants must be held to…

On Petition for Rehearing

ORDER

The petition for rehearing is denied. We note, however, that appellee expresses apprehension that our judgment may be read as requiring the return of the property to appellants rather than to the state court receiver, a result which, as appellee suggests, would be contrary to our intention. Reversal of the order denying appellants’ “petition to reclaim” is based wholly upon our construction of that order as an affirmation of the referee’s prior order requiring the state court receiver to surrender the property. Accordingly, appropriate steps should be taken on remand to restore the state court receiver to possession.

317 F.2d 539 J. Clarke SMITH and Margaret D. Smith, Appellants, v. Edwin E. HILL, Appellee. No. 17995. United States Court of Appeals Ninth Circuit. April 29, 1963, Rehearing Denied May 28, 1963. Wilson & Wilson and Fred A. Wilson, San Bernardino, Cal., for appellants. Holcomb, Kassel & Ward and William R. Holcomb, San Bernardino, Cal., for appellee. Before BARNES, JERTBERG and BROWNING, Circuit Judges. BROWNING, Circuit Judge. 1 On March 1, 1952, appellants sold certain real and personal property to appellee under a conditional sales contract, the validity of which is not questioned. Appellee defaulted. On June 2, 1961, appellants brought suit in the Superior Court of the State of California to foreclose appellee's rights under the contract. The Superior Court appointed a receiver who took possession of the property. On September 27, 1961 (within four months of the filing of the state court action) appellee filed a petition in the United States District Court under Chapter XI of the Bankruptcy Act. On October 25, 1961, the referee in bankruptcy ordered the debtor restored to possession, and the property was surrendered by the state court receiver. Appellants filed a…