Hunter, Walton & Co. v. J. G. Cherry Co.

247 F. 458 | 8th Cir. | 1917

AMIDON, District Judge.

On October 2, 1915, J. G. Cherry Company and two other creditors filed an involuntary petition in bankruptcy in the Northern district of Iowa, against the partnership of Gurier & Co., and the individual members thereof, G. H. and C. H. Gurier. Tlie petition alleged that, for the greater portion of the six months next preceding the date of its filing, Gurier & Co. had had their principal place of business in the city of Cedar Rapids, Iowa. The proceeding took its usual course, and resulted in the entry of a judgment on November 5, 1915, in accordance with the petition. The bankrupts were not found personally in the Northern district of Iowa, and the subpoena was served upon them by publication and mailing. January 23, 1916, the petitioners, Hunter, Walton & Co., creditors of the bankrupts residing in Chicago, filed a petition to set aside the adjudication in bankruptcy. It is based mainly upon the claim that the bankrupts in fact did not have their principal place of business at Cedar Rapids, but at De Kalb, 111. The firm was engaged in the creamery business. The partners resided and kept tlieir firm books and correspondence and office at De Kalb. A very large, if not the principal, amount of their business, so far as volume of trade is concerned, was done at Cedar Rapids. It is claimed by the petitioners, Hunter, Walton & Co., that the business at this point was merely ancillary, consisting of the-purchase of cream by an employe who made regular reports to the firm at De Kalb. The trial judge heard a large amount of evidence pro and con as to where the principal place of business of the firm was, and denied the petition to set the adjudication aside. This is a petition to revise that order.

[1] Two minor errors are assigned. By mistake of the printer the following line was omitted from the printed copy of the order directing that the subpoena be served by publication: “ * * * Be made by publishing this order together with said subpoena.” This .omission did not make the order misleading or unintelligible. It is therefore immaterial, and certainly could not be made the basis for such fundamental action as setting aside the adjudication. „

[2] The return day fixed by the order of publication and the subpoena was October 30th. By section 18b of the Bankruptcy Act the bankrupts and their creditors “may appear and plead to the petition within five days after the return day.” The adjudication, therefore, could not have properly been entered until November 5th. The referee who entered the judgment recites that the matter came on to be heard on the 4th day of November. This was a clerical error, as the proceeding was not referred to him until the 5th. His order of adjudication actually bears date on November 5th. It is plain, therefore, that the recitation of November 4th was a clerical error, and affords no ground for such relief as the petitioners are seeking.

The only support for the petition that has any merit is the claim that Gurler & Co. did not have their principal place of business at Cedar Rapids.

We pass, without expressing any opinion, a question which has not been argued, namely, whether the limitation of 10 days fixed by section 25a of the Bankruptcy Act (Comp. St. 1916, § 9609) for appealing from an adjudication can be avoided by a petition to revise an order refusing to set aside the adjudication after the 10-day period has expired. B-R Electric & Telephone Mfg. Co. v. Ætna Life Ins. Co., 206 Fed. 885, 124 C. C. A. 545; Hart-Parr Co. v. Barkley, 231 Fed. 913, 146 C. C. A. 109; In re Goldberg, 167 Fed. 808, 93 C. C. A. 203; In re Hudson Clothing Co. (D. C.) 140 Fed. 49; Brady v. Bernard, 170 Fed. 576, 95 C. C. A. 656. There are grave objections to keeping an administration in bankruptcy in suspense for a long period, as has been done in this case. It entails upon the bankrupts all the injuries of an actual administration in bankruptcy, without any of the benefits that would accrue to them and their creditors by a speedy administration, such as the bankruptcy law clearly contemplates.

[3] The petition to revise authorized by section 24b of the Bankruptcy Law is confined to matters of law. It cannot involve controverted questions of fact arising upon the evidence, or upon inferences to be drawn from the evidence. In re Lee, 182 Fed. 579, 105 C. C. A. 117; In re Frank, 182 Fed. 794, 105 C. C. A. 226; Hall v. Reynolds, 224 Fed. 103, 139 C. C. A. 659. The question whether the bankrupts had their principal place of business at Cedar Rapids is such a question. There was abundant evidence to support the decision of the trial court. This is true, not only of the direct testimony, but of the inferences properly to be drawn from all the evidence. It follows that the case presents no question which may properly be reached by a petition to revise.

The petition is therefore dismissed.