Alex Caplan v. C. Gordon Anderson

Order: Appealing from an order 1 entered on August 8, 1958, In the Matter of TMT Trailer Ferry, Inc., appellant is here alleging that in making the order, the district judge “did not afford the appellant the relief required by the mandate and judgment of this court and has circumvented the plain effect of the mandate by referring the matter to a Master for the taking of testimony where the evidence before him demanded a finding: (a) that appellant’s security continues to he in jeopardy; (b) th'at the debtor corporation has absolutely no equity in the mortgaged vessels, and (c) that the reorganization proceedings were not commenced and are not being continued in good faith in the statutory sense” and that “the appellant is plainly without remedy save by order of this court.”

Based Qn these aIlegations and allegationg that the appellailt is expediting the preparation of the appeaI> appellant moyeg the court; «(a) that a stay order be entered enjoining any further proceedingg before the Special Master until the merits of tMg appea] haye been deter. minedj or in the alternative that the Court enter an order that the proceedings before the Special Master insofar as they affect the rights of the Appellant be enjoined and stayed pending final determination of this appeal on its merits; and (b) that an order of court be entered herein directing the Clerk of this court to 'expedite the printing of the record on appeal and to assign this case for hearing at the earliest possible setting; and (e) that an order of court be entered authorizing the Appellant where necessary to refer to the record on appeal in the former appeal to this court, being Case No. 17117, styled Alex Caplan, Appellant v. C. Gordon Anderson, et al., Appellees [5 Cir., 256 F.2d 416] ; and (d) such other °rder as thf “urt may deem appropriate to cariT “to eñe*\01' en/orc® the ^°VI' slons of lts mandate and W^ment.

Upon consideration of the motion and of the answers thereto filed by the ap-pellees, C. Gordon Anderson and Joseph J. Clark, Trustees, and Merrill-Stevens Dry Dock & Repair Company, the Court, of the opinion that the appeal should be expedited and its hearing be brought on at the earliest practicable date on a rec *285 ord to consist of the record on the former appeal and the additional record made on this appeal, It Is So Ordered.

Of the further opinion that the proceedings before the Master, including his report, if promptly and expeditiously conducted and brought to a close, should not be stayed but should be permitted to proceed, and that the stay now sought should not be granted, It Is So Ordered, but without prejudice to the right of appellant to renew his motion if the proceedings before and by the Master are not conducted expeditiously as required by the order.

Finally, since appellant in his motion alleges that “he cannot appear in the proceedings before the Special Master pursuant to the provisions of the order of August 8, 1958, without prejudice to his right to appeal from that order”, and the court is of the opinion that, in the interest of bringing these matters to a close, he should so proceed, it is further Ordered that appellant’s appearance in those proceedings shall be without prejudice to his right to appeal from the or(jer<