275 F. 743 | 8th Cir. | 1921
The record on the petition to revise shows that on or about August 28, 1917, three creditors filed in the District Court of the United States for the District of Montana an involuntary petition in bankruptcy against George U. Flaherty, of Missoula, Mont., and Clara R. Carter, of Ft. Dodg.e, Iowa, as copartners doing business under the firm name and style of George U. Flaherty. The petition alleged that the firm had had its principal place of business at said Missoula for the greater portion of the six months next preceding the date of the filing of the petition, that the firm was insolvent and owed debts to the amount of $1,000, and contained other allegations showing that petitioners were duly qualified to file the same. The petition set forth the indebtedness
'Hie petition was duly verified, and a subpoena, directed to George L. Flaherty and Clara R. Carter as copartners doing business under the firm name and style of George L. Flaherty, was issued on said petition. Personal service of the subpoena, as shown by the return of the marshal, was made upon the firm by handing to and leaving a true and correct copj- thereof with George L. Flaherty. On September 26, upon the petition so filed, the firm composed of George L. Flaherty and Clara R. Carter, as copartners under the firm name and style of George LFlaherty, was adjudged a bankrupt. The case was referred to a referee. After said adjudication George L. Flaherty individually filed his voluntary petition in bankruptcy in the court aforesaid, and pursuant to said petition he was on the 18th of January, 1918, adjudged a bankrupt. Subsequent to the adjudication of the partnership as a bankrupt, it duly filed schedules of assets and liabilities. George L. Flaherty individually made and filed schedules of his assets and liabilities, which disclosed that Flaherty had no property of his own, other than that belonging to the partnership, and that he owed debts individually to the amount of $3,920. Frederick D. Whisler was appointed a trustee in bankruptcy of the estate of the partnership. The firm assets were sold by authority of the court in Montana for the sum of $7,710.15. The indebtedness of ¡be firm, as allowed by said court, amounted in the aggregate to $22,-135.34.
The court in Montana authorized the trustee to institute ancillary proceedings in the District Court of the United States for the Northern District of Iowa. Upon application of the trustee said court ordered that ancillary proceedings and matters arising in connection therewith he referred to C. A. Bryant, Fsq., at Ft. Dodge, Iowa, a referee in bankruptcy, to take such action and make such orders as might be proper in the premises. Subsequently the trustee filed a petition with the referee in bankruptcy in Iowa, setting out the proceedings had in Montana, and praying for an order that petitioner be required to file with the referee a complete and itemized schedule as required by law of her assets and liabilities as a member of the firm of George I,. Flaherty. A. show cause order was issued, and on the return day petitioner filed what is called in the record a “plea in abatement and to
The petitioner has never been heard upon the question of whether
(1) The petitioner, before she is required to schedule firm or individual assets, is entitled to be heard upon the question as to whether she was ever a member of the firm of George I,. Flaherty of Missoula, Mont.
(2) She is also entitled to be heard as to the existence of the alleged acts of bankruptcy mentioned in the involuntary petition, and upon this question she is entitled to a trial by jury under section 19 supra. If these issues are found against her, she will then be required to schedule any firm or individual assets in her possession in the manner provided by law for the purpose of ascertaining whether she has any property liable for the satisfaction of the debts of the firm.
The case will be remanded, with instructions to the District Court to proceed therein, not inconsistent with the views herein expressed.