Jack M. Thornton, As Trustee in Bankruptcy of John F. Scarborough, Jr., Bankrupt, Appellant, v. John F. Scarborough, Jr., Bankrupt, et al., Appellees, 349 F.2d 1023 (5th Cir. 1965)

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US Court of Appeals for the Fifth Circuit - 349 F.2d 1023 (5th Cir. 1965) August 31, 1965

Appeal from the United States District Court for the Middle District of Georgia; William A. Bootle, Judge.

Theo J. McGee, Max R. McGlamry, Columbus, Ga., for appellant.

W. Edward Swinson, Columbus, Ga., Cubbedge Snow, Macon, Ga., Roscoe M. Thompson, Columbus, Ga., for appellees.

Before TUTTLE, Chief Judge, and EDGERTON*  and SMITH,**  Circuit Judges.


In his motion for rehearing, Appellant calls our attention to the fact that, in discussing the Dismukes case [Dismukes v. Bagley, 165 Ga. 665, 141 S.E. 902], we stated that the Supreme Court of Georgia "affirmed the judgment of the trial court, which dismissed the trustee's suit on general demurrer", whereas, in point of fact, the Supreme Court reversed the judgment of the trial court, which had overruled a general demurrer. Of course, as Appellant recognizes, the result is the same in that the Supreme Court, by its judgment, elaborated in the opinion, quoted by us in our opinion, held that the contingent interests of B. L. Dismukes could not be reached in bankruptcy.

Except as modified herein, our opinion, 5 Cir., 348 F.2d 17, is reaffirmed and the motion for rehearing is denied.


Senior Circuit Judge of the D.C. Circuit, sitting by designation


Of the Third Circuit, sitting by designation