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(256 F.) f the upper front room had been of a character I been of an entire house, have divested the homeeffect will not follow; it being an inseparable

decisions, the property in controversy was proppart of the homestead of the bankrupt. ffirmed.

CRUGHAM et al. v. SHOUP et al.


of Appeals, Third Circuit. February 13, 1919.)

No. 2321.

329_INTERVENTION IN APPELLATE COURT. Jurt will not permit an intervention in an appeal before new issues not presented to or passed on by <he court

uf of Respondents for Decision in the District Court s for the Western District of Pennsylvania; W. H. Tudge. Josiah V. Thompson, bankrupt. From an order ob.. Shoup and others, George E. Scrugham and oth1. On petitions of Hugh G. Bourie, executor, and H. McGraw and others. Order for report by trus

of Pittsburgh, Pa. (A. Leo Weil, S. Leo Ruslander, ott, all of Pittsburgh, Pa., of counsel), for petitioners. in, of. Morgantown, W. Va., F. W. Downey, of and Thomas H. Hudson, of Uniontown, Pa., for re

NGTON and WOOLLEY, Circuit Judges.

'ircuit Judge. The facts of this case so far as they re

w under consideration are these: -15, the Court of Common Pleas of Fayette County, f Pennsylvania, appointed receivers for the estate of son, an individual. In May, 1917, the Supreme Court

annulled the action of the Court of Common Pleas receivership. , 1917, a voluntary petition in bankruptcy was filed

Thompson in the District Court of the United States District of Pennsylvania, and, in due course, trustees for the administration of his estate. On the day folof the petition and before the appointment of receivers mpson filed in the bankruptcy court a petition, showing mortgage creditors had previously reduced their mortee same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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gages to judgment in courts of the Commonwealth of Pennsylvania and that the coal lands secured thereby, situate in Green and Washington Counties in the said Commonwealth, were then advertised for sale under outstanding writs of execution, and praying that the said mortgage creditors be restrained from proceeding further on their executions. The mortgage creditors named in the petition showed by their several answers that suits had been brought on their mortgages, judgments recovered, and executions issued prior to the proceeding in bankruptcy, and claimed accordingly, that the state courts having acquired jurisdiction of the subject matter could not be ousted of their jurisdiction by the Federal courts under bankruptcy proceedings subsequently instituted.

The bankruptcy court granted a temporary restraining order extending to November, 1917, with leave to proper parties to move for its continuance. Later, the trustees of the bankrupt, having in the meantime been appointed, prayed that the order be continued to enable them to make an investigation of the loss which the estate would sustain if the order were annulled, and further to enable them to consummate a sale of all or a greater part of the coal lands of the estate at a price that would not only discharge the debts of all secured creditors but would enure appreciably to the discharge of debts of unsecured creditors. To this petition the several mortgage creditors demurred, and, on hearing, the petition for a continuance of the restraining order was denied. From this last order the trustees appealed, raising here as below a question of conflict of jurisdiction between State and Federal courts, which briefly stated is: Whether a court of bankruptcy has power to enjoin a state court from proceeding to sale of property secured by a mortgage given by the bankrupt more than four months prior to filing a petition in bankruptcy and reduced to judgment and execution within four months prior to the filing of the petition.

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While this appeal was pending and before a decision on the one question involved had been rendered, Hugh G. Bourie, Executor, et al. and James H. McGraw et al. sought to intervene, and by their petitions showed that they are creditors of Josiah V. Thompson, the bankrupt, holding liens against coal lands of the bankrupt situate in the States of Pennsylvania and West Virginia, on which they had instituted actions in courts of those states; that in addition to the restraining order issued by the District Court of the United States for the Western District of Pennsylvania, brought under review by this appeal, the District Court of the United States for the Northern District of West Virginia, an ancillary court of bankruptcy, had entered an order in comity with the order of the District Court of the United States for the Western District of Pennsylvania restraining further proceedings. in the state courts of West Virginia against the lands of the bankrupt estate; and—complaining grieviously of undue delay on the part of this court in rendering a decision in the case to which they even then were not parties--the petitioners prayed, first, that a prompt decision be made on the question raised on demurrer by the several Pennsylvania creditors holding mortgages against certain of the bank


(256 F.) nsylvania, and second, that the decision be in contention of the Pennsylvania mortgage creditors, ippeal. f these petitions shows that the questions of law elated perhaps to the questions in this casen a like state of facts and are not the same quesg different questions newly raised, we are not n them on this appeal when they have not been ssed on by the court below, nor are we disposed this complicated case by injecting new questions lecision. But we desire, of course, to secure to

we can, the right to proceed in their cases in can be done in a manner not inconsistent with the rupt estate. Therefore, we are inclined to limit training order of the District Court of the United stern District of Pennsylvania, still in force and opeal, so that the District Court of the United hern District of West Virginia shall no longer feel

follow that restraining order with one of its own, e, exclude from the operation of its order so much bankrupt situate in West Virginia as are not pres

process of sale or disposition by the trustees in the the bankrupt estate, thereby permitting creditors

such lands to proceed thereon in such courts and may in law be right. Such action on our part would o intimation of our opinion for or against the juriskruptcy court, either original or ancillary, to hold

entire bankrupt estate by the officers and through d by the bankruptcy law. ew, we recently directed counsel for the trustees ourt the tracts of coal land of the bankrupt estate irginia, with reference to which the trustees were vard their sale or disposition. Instead of making nsel for the trustees have filed an argument against

court tending to allow lien creditors in West Virer authority of the District Court of the United orthern District of West Virginia, to enforce their s for the sale of which the trustees have no present

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t obstruct or delay secured creditors in the enforceats when there is involved in opposition no question cured creditors, it becomes necessary to transform our equisite information into an order. Therefore, as it le to discover from the record now before us what rupt estate situate in West Virginia are not embraced f sale, we request the trustees of the bankrupt and -editors of West Virginia to designate by stipulation, Vest Virginia lands thus intended to be released from ncillary restraining orders, and failing such stipulation, stees of the bankrupt to make to this court on the first

day of the March term next ensuing a report of such coal lands of the bankrupt estate, by appropriate description, as will enable this court to dispose of them according to the premises.



(Circuit Court of Appeals, Fifth Circuit. March 5, 1919.)

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A state law requiring claims against a county to be presented to the county board before suit may be inaintained thereon is reasonable and valid, and will be recognized and enforced by a federal court unless the county board has taken action which was equivalent to rejection of the

claim, and rendered its presentation unnecessary and futile. 2. COUNTIES Em197—ACTIONS AGAINST-PRESENTATION OF CLAIM TO COUNTY


A claim for attorney's fees, based on an injunction bond given by a county in a suit in which it was defeated, need not be presented to the county board; such fees, if recoverable, being an incident to litigation

begun by the county. 3. COUNTIES 201—Claims AGAINST-PRESENTATION.

Presentation to a county board of a claim for a stated suni as “actual and exemplary damages" for an alleged libelous suit does not meet the

requirement of a statute requiring an itemized statement. 4. COUNTIES 206(1)--CLAIMS AGAINST—CONCLUSIVENESS OF ALLOWANCE.

Under the law of Alabama a county may maintain a suit to have a claim against it allowed by the county board, which claim has not been substituted by a new character of county obligation, declared invalid, and a decision against it in such suit is an adjudication of the validity of the

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Judgment may be given on an injunction bond for damages proved, arising from the issuance in the case of a preliminary injunction, which is dissolved, but attorney's fees and other expenses incident to the suit

are not allowable in a federal court. 6. SET-OFF AND COUNTERCLAIM 34(2)—COUNTERCLAIM-LIBEL BASED ON


Damages for libel based upon the allegations of the pleadings in

suit in equity in a federal court cannot be set up by way of counterclaim 7. COUNTIES Cw141-LIABILITY FOR TORTs-LIBEL.

A county cannot be held for damages for libel. Appeal and Cross-Appeal from the District Court of the United States for the Middle District of Alabama; Henry D. Clayton, Judge.

Suit in equity by Covington County, Ala., against W. L. Stevens. From the decree, both parties appeal. Affirmed in part, and reversed

in part.

November 10, 1914, W. L. Stevens made a contract with the board of reve. nue of Covington county, Ala., by which he was to be employed as architect Aww For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(256 F.)
urthouse. He agreed to prepare all general and detail drawings
tions and do all things necessary and usual in the planning and
-f construction. His services were to begin at once, and he was to
wings and specifications so that the contract might be awarded

n November 30, 1914. He was to attend to all advertising, to as-
ng bids and awarding the contract, to supervise construction, and
his expense, on the building a competent superintendent at all
cages of construction. The contract provided : “For the faithful
performance of this contract, the party of the second part shall
party of the first part a commission of 5 per cent, of the contract
work, three-fifths of which shall be paid at the time of letting the
warrants on the county treasurer of Covington county, Ala., bear-
at the rate of 6 per cent. per annum, and the balance of two-fifths
mount as the work progresses."
mber 30th, the board met to receive bids, but did not award the con-
the 1st day of December the time was extended until the 5th. On
R. Merrill filed a bill of complaint in the chancery court against the
Stevens, praying that they be restrained from accepting any bids
er 5th. A temporary injunction was granted. After service of the
board, on the 24th of December, entered into a contract with the

Construction Company.
1st of January, Merrill amended his bill, setting up the facts with
to the violation of the injunction, making the Falls City Construction
a party, and praying that it be restrained from further proceeding
contract. The injunction, granted in accordance with the prayer,
en disobeyed, proceedings in contempt were begun, and, the matter
the Supreme Court of Alabama, the court issuing the injunction was
ave been without jurisdiction.
1st of January, 1915, the terms of office of the members of the board
ie expired, and a new board was inducted into office. Prior to the
n of the term of the old board, a treasurer's warrant was issued to
for an amount equal to 3 per cent of $139,500, this being the amount
aximum bid of the Little-Cleckler Construction Company. This war-
I a marginal note to the effect that it was payable in February,
he warrant drew interest at 6 per cent. The chairman of the board
ue refusing to sign the warrant, it was signed by the other members
oard. The new board passed resolutions declaring the contract with
and the contract with the Falls City Construction Company void, and
ps to let a new contract.
ine 21, 1915, the county instituted in the equity court of the Southeast-
ncery division of Alabama a suit against the Falls City Construction
y, W. L. Stevens, W. H. Johnson, and M. C. Gantt. Gantt was alleged
resident of the county of Covington, Ala. The bill recited facts here-
3 set out, and made further allegations to the effect that Stevens was,
ime he became employed by the county and afterwards, working to se-
e contract for the Falls City Construction Company. Allegations were
ide to the effect that the plans and specifications were not completed in
that there were conflicting provisions in the specifications; that the
of the specifications were indefinite; that no person could safely bid,
by adding amounts which might be required from one construction of
ins and specifications as distinguished from another, the interpretation
in Stevens; that the plans were inadequately advertised; that there
n intentional suppression of the fact that the building was to be con-
?d; that no sufficient time was given for contractors to figure upon the
ng; that Stevens sent out to prospective bidders what purported to be
y contractors upon certain parts of the work, the amounts being exces-
that he furnished to certain bidders sheets, showing that the building
o be of a steel frame, the bid of the Falls City Construction Company
based upon concrete frame; and making other allegations questioning
ood faith and proper performance of his duty by Stevens. There are
Illegations to the effect that the contract was not let to the lowest bidder:


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