290 F. 194 | 8th Cir. | 1923
This is an appeal from an order adjudging appellant a bankrupt. The act of bankruptcy upon which appellant was adjudged a bankrupt was that it had made a general assignment for the benefit of its creditors.
The objection that the petition does not sufficiently allege the commission of the act of bankruptcy upon which appellant was adjudged a bankrupt must be overruled. It is alleged in the petition that
The objection that the court erred in entering the order of adjudication, notwithstanding appellant had an .answer on file, must be overruled. The order was made upon the motion of appellees (1) to strike out the answer of appellant as sham; (2) that appellant be adjudged a bankrupt, “as if no answer had ever been filed herein.” . It was shown by affidavits that appellant, five days before the filing of the petition, had executed an instrument, which was a general assignment for the benefit of creditors, as defined by this court in Courtenay Co. v. Finch, Van Slyke & McConville, 194 Fed. 368, 114 C. C. A. 328. The trial court charitably assumed that appellant had not intended to deny that it had executed the instrument, and construed appellant’s answer as admitting its execution. The court thereupon denied the motion to strike the answer as sham, and treated appellees’ motion as a motion for judgment on the pleadings, and entered judgment accordingly.
Appellant now claims that its answer should not be construed as admitting the general assignment for the benefit of its creditors; that, with the answer on file denying the general assignment for the benefit of creditors, it was entitled to a jury trial (a jury trial was demanded in the answer). Based upon these premises, appellant says the order of adjudication was necessarily erroneous. If it be admitted that the answer denied the making of the general assignment, the admission would not help appellant. Treated as a denial of the making of the general assignment for the benefit of creditors, the answer was sham, and should have been stricken out, at least in respect to this act of bankruptcy. If the answer did not deny the execution of the general assignment, the order of adjudication was properly entered. If the answer did deny the execution of the general assignment, it was sham, and should have been stricken out, and an order of adjudication entered. Petitioners were in any event entitled to the order adjudicating appellant a bankrupt.
The order is affirmed. Costs to appellees.
