opinion: In re ZAFERIS BROS. & CO., Limited. BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. SMALL.
  No. 7040.
  Circuit Court of Appeals, Ninth Circuit.
  Sept. 16, 1933.
  Louis Ferrari, of San Francisco, Cal., and Edmund Nelson and G. L. Berrey, both of Los Angeles, Cal., for appellant.
  Torregano & Stark and August B. Rothschild, all of San Francisco, Cal., for appellee.
  Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
  MACK, Circuit Judge.
  Appeal from an order of the District Court affirming an order of the referee disallowing a proved claim for $12,300 (all amounts -are in round numbers) against the bankrupt until appellant should have surrendered an alleged preference of $8,500. Appellant’s claim was based on a note of the bankrupt for $10,000 and an overdraft in the latter’s account for the balance of $2,300’. A few weeks before the petition in bankruptcy was filed, and after appellant had several times pressed bankrupt to cover its overdraft which varied from day to day and at times exceeded $10,000, James Zaferis, stockholder in the bankrupt corporation who had guaranteed payment of all of bankrupt’s obligations to the bank, transferred the balance in his personal savings account with the bank, $4,100, and delivered to it a cashier’s cheek on another bank for $4,400, all of which was credited to bankrupt’s account. The overdraft at that time was some $200 less than the amount thus paid, but large outstanding checks about which all the parties knew, caused the account to be considerably overdrawn before the close of business on that day. For this, James Zaferis accepted from bankrupt its unsecured note covering the amount of his savings account and the cashier’s check. The referee and District Court held that the reduction of the overdraft by this transaction constituted a preference under U. S. C. title 11, § 96 (a), 11 USCA § 96 (a) (Bankruptcy Act § 60a).
  While appellant received a sum of money from Zaferis which satisfied part of the debt owed it by the bankrupt, other creditors did not suffer thereby. Two creditors were substituted for one, but bankrupt’s total indebtedness was unchanged. Its estate was therefore unaffected by the transaction.
  Appellee urges, however, that the corporation note evidences a borrowing by it from James Zaferis and therefore, though James Zaferis dealt directly with appellant, there was nevertheless a moment at which the sum loaned was in bankrupt’s control; and that thus the payment to the bank was in law made by bankrupt.
  The contention is untenable. True, in the negotiations that took place between James Zaferis and bankrupt’s president, his brother, the proposed reduction was always spoken of as a loan to the bankrupt; and the payment was made at least in part because of James’ anxiety to save the business. But the situation is entirely different from one in which a third person either as a volunteer or because of his own stake in the enterprise gives to the failing concern funds and a free hand to use them as general assets. In this case, the third person himself expended his funds specifically to relieve bankrupt’s distress. So far as bankrupt was concerned, there was merely a transposition of credits. At no time were the credits, supplied by James, at the complete disposal of the corporation. James, as guarantor, was necessarily protecting himself as well as bankrupt by the payment to the bank. By the payment which must be deemed as made under the guaranty, he became subrogated to the hank’s claim; the note which he took was but a formal recognition of the right thus acquired by him. That the Zaferis brothers, unfamiliar, as the referee observed, with Eng-fish, did not go so far in their analysis of motives and legal consequences, cannot alter the essential character of the transaction, as a payment by a third person out of his own funds.
  It therefore lacked the primary element of a preference, that of a transfer of the bankrupt’s property. Newport Bank v. Herkimer Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042 (1912). It is well settled that payments by third parties of their own money do not constitute preferences. For further discussion and citation of cases, see First National Bank of Danville v. Phalen, 62 F. (2d) 21 (C. C. A. 7th, 1932).
  Order reversed and remanded.
  “A person shall he deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, * ** * made a transfer of any of his property, and the effect of the * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.”
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.