265 F. 736 | D. Del. | 1920
Two petitions in bankruptcy have been filed against Okmulgee Producing & Refining Company, a. Delaware corporation, one in the District Court of the United States for the Eastern District of Oklahoma on February 19, 1920, and the other in this court by the same petitioning creditors on February 23, 1920. Several creditors other than the original petitioners have entered their
The original and intervening petitioning creditors have filed a motion that the petition or motion for transfer be dismissed, upon grounds which may be summarized thus: (1) That the petition or motion is not verified as required by the Bankruptcy Act; (2) that the alleged bankrupt is not a competent party to petition or .move the court for the transfer of this case; (3) that the petition or motion does not state facts sufficient to warrant the court granting the relief prayed; and (4) that the motion for transfer is premature, in that there is under the Bankruptcy Act and the General Orders no power in the court to make an order of transfer prior to adjudication.
“All necessary rules, forms, and orders as to procedure and for carrying this act into force and effect shall he prescribed, and may be amended from time to time, by the Supreme Court of the United States.” .
In pursuance of the power and authority thus conferred the Supreme Court prescribed certain forms, and by General Order 38 (89 Fed. xiv, 32 C. C. A. xxxvii) directed:
“The several forms annexed to these General Orders shall be observed and used with such alterations as may be necessary to suit the circumstances of any particular case.”
The form of verification prescribed for an involuntary petition in bankruptcy (form 3) is absolute, namely, “That the statements contained in the foregoing petition, subscribed by them, are true,” while the form for verification to a voluntary petition (forms 1 and 2) is qualified, thus, “That the statements contained therein are true according to the best of my [their] knowledge, information and belief.” The Supreme Court thereby recognized both thé absolute and the qualified form of oath as being within tl]e meaning of the statute. Sabin v. Blake-McFall Co., 223 Fed. 501, 505, 139 C. C. A. 49.
No form was prescribed for a motion or petition to transfer a case to another district. The form of verification annexed to the motion in the case at bar is therefore not in conflict with any form or General Order prescribed by the Supreme Court. It is not in conflict with the statute, unless the verification to a voluntary petition in bankruptcy is also in conflict therewith, which cannot, owing to its origin, be here presumed. The creditors, in support of -their contention
“No one can become familiar -with the bankrupt law of 1898 without a settled conviction '(hat the two dominant purposes of the framers of that act were: (1) The protection and discharge of the bankrupt; and (2) the distribution of the unexempi: property which the bankrupt owned four months before the filing of the petition in bankruptcy against him, share and share alike, among his creditors. All the earlier sections of the act are devoted to the security and relief of the bankrupt, and, when the distribution of his property is reached, the provisions relating to it are all drawn from the standpoint of the insolvent, and not from that of his creditors. The rights and privileges of the bankrupt, and the equal distribution, of his property, dominate every provision, while the rights, wrongs, benefits, and injuries of his creditors are always incidental, and secondary to these controlling purposes.”
The nature of a bankruptcy proceeding was well defined by Wood-ruff, C. J., in Re Boston, H. & E. R. Co., Fed. Cas. No. 1,677, where he said:
"At first view, it is natural and agreeable to our ordinary ideas upon this subject, to assume that a petition by an alleged creditor against his debtor, to compel a submission of his estate to the bankruptcy court, is a contest between two parties, with which a third person may not meddle. But this is by’ no means a complete view of the scope and effect of the proceeding. Jt is not a mere suit inter partes. It rather partakes of the nature of a proceeding in rem. * * * ”
That the bankrupt is a party in interest in the proceeding for transfer was expressly decided by this court in Re United Button Co., 137 Fed. 668, 672, where Judge Bradford said:
“The Bankruptcy Act does not define or describe ‘greatest convenience’ or ‘parties in interest,’ as those phrases are used in section 32 and General Order 6. Both expressions are elastic and largely indefinite. It is manifestly too narrow a construction of the phrase ‘parties in interest’ to restrict it merely to unsecured creditors in bankruptcy. The bankrupt is not only literally but substantially a party in interest.”
The petitioning creditors cite no authority in support of their contention that the alleged bankrupt is not a competent or proper’party
The qverments of the motion or petition to transfer show, if true (and for the purposes of the motion to dismiss the petition they are taken to be true), that petitions have been filed against the Refining Company in different courts of bankruptcy and that each court has jurisdiction. The averments touching the convenience of parties are such that, in the absence of countervailing facts, the only inference to be drawn therefrom is that the one of such, courts of bankruptcy having jurisdiction which can proceed with the case for the greatest .convenience of the parties in interest is the Oklahoma court. In re Sterne & Devi (D. C.) 190 Fed. 70; In re New Era Novelty Co. (D. C.) 241 Fed. 298. I think this conclusion in accord, rather than in conflict, with In re United Button Co. (D. C.) 137 Fed. 668. Any apparent conflict is due to the fact that the court was there considering evidence adduced for and against a motion to transfer, while we are here dealing with unqualified averments.
“In the event petitions are filed against the same person * * * in different courts of bankruptcy each of which has jurisdiction, the cases shall be transferred. * * * ”
“When Ihe language of a statute is unambiguous, and its meaning evident, it must be held to mean what it plainly expresses, and no room is left for construction.” Johnson v. Southern Pac. Co., 117 Fed. 462, 465, 54 C. C. A. 508, 511.
The terms of the foregoing statute are clear and certain, and its meaning is plain. The court is therefore without power, under the guise of construction, to require the existence of an additional event, fact, or condition not prescribed by the statute as a prerequisite to an order of transfer or to make such order in the absence of one that is required. As the statute does not make adjudication a-condition precedent to transfer, the courts may not do so.
The motion to dismiss the petition to transfer must be denied.