109 F. 777 | E.D. Wis. | 1901
The objections to these petitions in involuntary bankruptcy raise the twofold question: (1) Whether the original petitioner, as an attaching creditor, was competent to institute the proceeding in bankruptcy, while retaining his attachment levy; and, if competent, (2) whether the intervening petitioners are existing “creditors who have provable claims,” to make up the requisite number of petitioners for an adjudication. In either aspect the question affects the jurisdiction, and should be considered at this stage, although not presented with the formality of a plea in equity.
1. The primary petition does not state the fact of the pending-attachment suit upon the same claim, but the answer so alleges, and the fact is conceded on behalf of the petitioner; the only dispute being as to the sufficiency of the levy to cover the claim on which no proof has been taken. The inquiry presented is thir-r The attachment existing, has the attaching creditor prima facie standing under the bankrupt act to follow up bis attachment with a petition for an adjudication of bankruptcy against his debtor, based upon the same claim, and without formal release of his levy? Its solution is not free from difficulty under the various terms of the act, with no single provision directly covering it. Section 5ÍH»' requires that petitioners shall be “creditors who have provable claims” aggregating So00 in amount, but with the qualification that this amount be “in excess of the value of securities held by them”; thus clearly implying that' the fact of security is not a bar. The
2. The original petition alleges as ground for its presentation by a single petitioner that the creditors of the alleged bankrupt were less than 12 in number, and, upon the answer disclosing a much larger number of general creditors, the further hearing was delayed, and notice thereof given to all such creditors, to enable others to appear in conformity to the statute. Thereupon two intervening-petitions were filed; one by F. P. Smith, for $8.45, and the other by E. A. Sittig & Son, for $56.25. Issue being taken upon the truth and bona fides of such claims, it now appears by the undisputed proof that the claims so brought in were purchased by the original petitioner, and paid by him or his counsel in full, and' that the pur