223 F. 379 | D. Mass. | 1915
This involuntary petition in bankruptcy was, upon the petition and answer, referred to the referee to state the facts upon the question of adjudication. By his report it appears that the matter was set down for hearing before him; that at the time fixed, counsel for the petitioning creditors and for the respondent ap
The respondent now moves that the report be confirmed and the-petition dismissed. Nobody opposes the motion. The only question is whether, under the circumstances, an order of dismissal can be made without notice to creditors under section 59g. That section provides, in substance, that an involuntary petition shall not be dismissed “for want of prosecution or by consent of parties” until after notice to the creditors, and that the court shall, before entertaining an application for dismissal, require the bankrupt to file a list of his creditors, and cause notice to be sent to them, and delay 'action a reasonable time to allow them an opportunity to be heard. Where there has been a full hearing on the merits, at which the ■ petitioners have introduced evidence, the provisions of the section in question do not apply. Under such circumstances, if the decision be adverse to the petitioners, the petition is dismissed without notice to creditors who are not parties to the proceedings. In re Everybody’s Store, Inc., 207 Fed. 752, 125 C. C. A. 290 (C. C. A., 1st Circuit). Such notice is required only when the petition is dismissed by the petitioners, or for want of prosecution, or by consent of parties. Upon the facts stated in the referee’s report, is “want of prosecution” or “consent of parties” to dismissal of the petition shown? “Want of prosecution” is a familiar ground upon which actions at law and suits in equity are dismissed. As there used, it ordinarily signifies a failure to follow up' the case, so that by reason of staleness, or of omission to file proper pleadings, it has become subject to dismissal without a hearing on the merits. It seems to me that that is what this éxpression means in this connection. So construed, the facts in the referee’s report do not show a want of prosecution. The petitioning creditors followed up the petition in all formal matters, and when it was set down for hearing duly attended before the referee. They did not offer any evidence; but I do not think that their failure to do so under the circumstances shown was a “want of prosecution” within the act.
The remaining point is' whether an order of dismissal based on the referee’s report would be “by consent of parties.” It appears from the report that counsel-for the petitioners agreed that the petition had not been sustained, that counsel for the respondent agreed that no costs should be imposed upon the petitioners if the petition was dismissed, and that counsel for the petitioners assented to the referee’s recommendation of dismissal. Whether the recommendation of dismissal is based upon that assent, or upon the failure of proof, is perhaps not altogether clear/ The real question, however, is whether what the petitioners did and failed to do before the referee was in pursuance of an agreement between them and the respondent which contemplated