# Fish v. East

> Court of Appeals for the Tenth Circuit · June 29, 1940 · 114 F.2d 177

URL: https://www.frixlaw.com/law-library/cases/9651695

## Case

- **Full name:** FISH Et Al. v. EAST (Four Cases); TIGER PLACERS CO. v. COHEN Et Al.; BLUE RIVER CO. v. EAST
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** June 29, 1940
- **Citations:** 114 F.2d 177; 1940 U.S. App. LEXIS 3091
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Phillips, Bratton, Williams
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9651695

## Opinion text

On Petition for Rehearing.
PER CURIAM.
Counsel for appellants have filed a petition for rehearing in which they assert that the opinion of the court leaves Erland F. Fish without remedy for the funds advanced by him for the bankrupts to acquire the tax and judgment liens. We did not so intend. To secure reimbursement for the funds so advanced, Fish is entitled to benefit of the judgment and tax liens. The statutory time for filing general claims having expired and Fish having withdrawn his claim, he is not entitled to an allowance for any excess of such advances not satisfied by his securities. But a secured creditor does not lose his lien by failure to file a claim. Remington on Bankruptcy, vol. 2, § 910; Ward v. First Nat. Bank of Ironton, Ohio, 6 Cir., 202 F. 609, 612 ; Courtney v. Fidelity Trust Co., 6 Cir. 219 F. 57, 63 ; In re Cherokee Public Service Co., 8 Cir., 94 F.2d 536, 538 . The trustee took the bankrupt estate subject to Fish’s lien.
Hence, Fish is still entitled to the benefit of his securities and may enforce them in a proper proceeding. He may, if he so elect, file a petition against the trustee in the bankruptcy court seeking an enforcement of his securities and in that event, the referee should order sale of the tax and judgment liens to satisfy Fish’s advances unless the trustee make reimbursement to Fish therefor.
The referee reserved any rights that the Blue River Company may have to file claim for reclamation. It was not the intention of this court to pass upon or foreclose any right that the Blue River Company may have by way of reclamation.
It is so ordered. In other respects, the petition for rehearing is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9651695. Public record. Not legal advice.