78 F. Supp. 266 | W.D. Pa. | 1948
The proceeding before us is a motion by the Western Reserve Finance Company of Cleveland, Ohio, a creditor, to set aside an adjudication in bankruptcy of one Robert M. Holman, it being alleged that there is lack of jurisdiction for the reason that the bankrupt had not had his principal place of business, resided or had his domicile within the Western District of Pennsylvania for the preceding six months, or for a longer portion of the preceding six months than in any other jurisdiction.
Holman began his employment as a copilot with American Airlines about April 1942, operating during the first year out of New York and Fort Worth, Texas. He was then transferred to Cleveland, Ohio, where he was stationed about a year, and then about a year at Memphis, Tennessee. In 1945 he returned to Cleveland and has started his run, as co-pilot, from Cleveland, Ohio, since that time. His parents had moved to Cleveland in 1940. Up until September 1, 1947, when, having been married, he obtained a house at Cleveland, he kept his uniform and equipment at the home of his parents in Cleveland and also lived there when in Cleveland.
Toward the end of 1945 the schedules of the American Airlines were cut so that his flights were not regular. On January 19, 1946, he entered into a partnership with one H. Tice Bonesteel, the business being known as Presque Isle Aviation, which acquired three planes and other minor accessories and equipment and operated at a rented seaplane base at the foot of State Street, Erie, Pennsylvania. The nature of the business as contemplated was “ * * * to instruct, carry passengers for sightseeing, for charter, sell new and used airplanes, equipment pertaining to airplanes and floats.” There is no evidence that any sales were made. Flights were conducted by a pilot employed by the partnership, which also employed a dockman and sometimes part time, two dockmen.
Being employed by the American Airlines, Holman was not allowed to make other flights for hire, and with possibly one exception made none for the partnership. About August 13, 1947, Holman employed a broker in an effort to sell the partnership business. In September 1947 a Landlord’s Warrant issued against the partnership. In October 1947 the venture entered a State Court Receivership, a temporary receiver being appointed October 6, and made permanent on October 13. Holman, individually, filed a Voluntary Petition in Bankruptcy, in the Western District of Pennsylvania, the adjudication being on January 13, 1948. The partnership is not now and has not been in bankruptcy.
Holman had no other business in Erie. He paid no personal taxes nor did he vote in Erie. During 1946 and the spring of 1947, Holman, when in Erie, stayed at the Y.M.C.A. and subsequently boarded with a private family, marrying the daughter on July 5, 1947. His wife accompanied him to Cleveland about September 1, 1947. The testimony of Holman being “ * * * at which time we were able to find a house in Cleveland, * *
Prior to the receivership of Presque Isle Aviation, he would stop in at the seaplane base three or four times a week, depending upon his Cleveland flights for American Airlines. He would drop in a few minutes, half a day, or sometimes twice a day if he was in Erie all day, and on Sundays would help sell tickets at the seaplane base. There does not appear to have been anything else for him to do in connection with the partnership business. Operations ceased with the Landlord’s Levy in September with the exception that one plane was operated two Sundays thereafter. The receivership did no business. Holman came to Erie late in 1947 to fly one of the planes to Cleveland for storage for the receiver, but this was not done because the plane carried no insurance. Holman stated “So the airplane was left in Erie and I went back to Cleveland.” His partner saw Holman in Erie once in September and once (the last time) in November 1947. Holman is now
The Bankruptcy Act provides that the Courts of Bankruptcy as defined in the Act,
We are here concerned with the bankruptcy of an individual. The partnership is not in bankruptcy. It is material only as it may have some bearing on the determination of principal place of business, referring such term to Holman’s personal business affairs.
It follows therefore that Holman has not had his residence, domicile or principal place of business for a longer portion of the preceding six months in the Western District of Pennsylvania, than in any other jurisdiction. The Adjudication in Bankruptcy is accordingly set aside and vacated.
Bankruptcy Act § 1, 11 U.S.O.A. § 1.
Bankruptcy Act Sec. 2, sub. a(l) as amended June 22, 1938, 11 U.S.O.A. § 11, sub. a(l).
Remington on Bankruptcy, Vol. 1, Sec. 36.
Remington on Bankruptcy, Vol. 1, Sec. 38. '
In re Camera, D.C. S.D.N.Y., 6 F. Supp. 267; Remington on Bankruptcy Vol. 1, See. 39.25.
Petition of Hood Feed Co. (In re Knox), 6 Cir., 11 F.2d 743.
Remington on Bankruptcy, Vol. 1, Sec. 41.