Geitz v. Gray

On Motion for Rehearing

MATTHES, Judge.

Appellant has filed a motion for rehearing in which he urges that our opinion is diametrically opposed to the opinion of the Circuit Court of Appeals, Eighth Circuit, in the case of National Refining Company v. United States, 160 F.2d .951. In that case the United States and the National Refining Company were rival claimants to a fund in the registry of the United States District Court. The Government’s claim to the fund was based upon a lien for unpaid federal taxes assessed against one McDowell for the years 1965 to 1945. The lien was perfected in July, 1945, as against any mortgagee, pledgee, purchaser or judgment creditor by recording of notice of tax lien. Appellant National Refining Company’s claim to fund was based upon an equitable assignment made to it by McDowell in October, 1940. See National Refining Company v. McDowell, Mo.Sup., 201 S.W.2d 342.

In finding that the claim of the National Refining Company was entitled to priority, the Circuit Court of Appeals said, 160 F.2d loe. cit. 955:

“Our conclusion is that the fund in suit represents a commission assigned to appellant by McDowell in 1940; that the commission became available to McDowell on May 17, 1945; and that appellant, as his assignee, is entitled to the fund.”

It is readily observable that the National Refining Company case is clearly distinguishable on the facts from the instant case. Whereas in this case the assignment was made subsequent to the perfecting of the Government’s lien, in the National Refining Company case the court found that the assignment was made in 1940, and the amount became available on May 17, 1945, both dates being prior to the date that the Government perfected its lien in July of 1945.

Appellant’s motion for rehearing should be overruled. . It is. so ordered.

SAM C. BLAIR and FRANKLIN FER-RISS, Special Judges, concur.