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Price v. Kosmin.

decided.: April 25, 1945.

PRICE
v.
KOSMIN.



Author: Mclaughlin

Before ALBERT LEE STEPHENS, GOODRICH, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The background of this case is set out at length in our previous opinion in the matter, Moonblatt v. Kosmin, 3 Cir., 139 F.2d 412. We there decided that the Bankruptcy Court had jurisdiction to adjudicate the rights of the trustee and the appellee to money obtained by the appellee from the sale of stock allegedly given her by her husband, the bankrupt, in partial payment for certain advances made by her to him or to his business. Thereafter in further proceedings, the District Court adopted, among others, the following findings of fact by the Referee:

"10. It is therefore fair to presume that the stock was transferred, if ever, immediately prior to the payments to Mrs. Kosmin, which, as hereinbefore stated, was after the petition in bankruptcy was filed.

"11. The Respondent produced checks which indicated that the sum of $6707.59 was disbursed, leaving a balance in said fund as of June 3rd, 1941, the day the petition for a turnover was filed of $1591.06. The Trustee does not dispute the fact that checks for said amount cleared through the depository and there is no allegation of fraud and collusion between the Respondent and the respective payees."

The District Court also adopted the following conclusions of law of the Referee:

1. That the Bankruptcy Court has jurisdiction to determine the instant issue in a summary proceeding.

"2. Under the circumstances, the trustee had a lien on the proceeds of said stock under the provisions of Sec. 70, subdiv. C of the Bankruptcy Act [11 U.S.C.A. 110, sub. c.].

"3. Hence by failure to have the stock or certificates delivered to her prior to the bankruptcy, she, the Respondent, did not acquire title to said stock, which remained vested in the bankrupt.

"4. That the said Bertha Kosmin received the proceeds of the sale of the stock of the Tiger Food Corporation and the proceeds of the sale of the Mack truck and the DeSoto automobile, with fraudulent intent to defraud the creditors of her husband Ben Kosmin."

The judgment of the District Court reads as follows:

"Now, October 11, 1944, it is Ordered and Decreed that Bertha Kosmin turn over to Joseph M. Price, Trustee in Bankruptcy of the Estate of Ben Kosmin, the sum of $1591.06 within ten days from the service of a copy hereof, which said amount the said Bertha Kosmin fraudulently conceals and withholds from the said Trustee in Bankruptcy."

From the proceeds of the sale of the above mentioned stock Bertha Kosmin paid out: $685.80 as part of the purchase price of an automobile; $424.32 in premiums on the bankrupt's life insurance policies; $4,190.67 in repayment of loans obtained on those policies by the bankrupt; and an additional $169.12 for premiums on said policies after the trustee's petition for a turnover order had been filed. These items total $5,469.91. The trustee contends that the turnover order should be enlarged so as to include this sum.

Though the appellee has not appealed from the judgment of the District Court, it is urged on her behalf that finding of fact No. 10 and conclusion of law No. 2, both above quoted, are erroneous. Morley Const. Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S. Ct. 325, 81 L. Ed. 593 is cited as authority for the right to so argue at this time. Under the present particular facts, it is questionable that the Morley decision justifies appellee's contention, but even ...


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