98 F. 589 | S.D.N.Y. | 1899
In August, 1809, a petition was filed by the creditors of 'the above-named bankrupt, as surviving member of the firm of S. Waxelbaum & Bon, at Macon, in the Southern district of Georgia, to have him adjudicated a bankrupt, alleging that he resided and had his domicile and principal place of business within that district. The bankrupt not being found there, an order for service by publication, issued November 21st, was personally served on the bankrupt in the city of New York on November 28th, requiring him to answer the petition by January 3, 1900. On amendment of the petition, a further order of publication was made, returnable January 15, 1900, which was personally served on the bankrupt in this district on December 5th. On December 7th, the bankrupt. filed his own petition in this district stating that he had had his residence and principal place of business for the greater part of the six months previous in this district and asking to be adjudged a bankrupt here. On the next day, before any adjudication thereon, an order was granted by this court to show cause why the last-named petition should not be set aside, or for other relief, upon affidavits presented by creditors, stating the pendency of the involuntary proceedings* in the Southern district of Georgia, that he was domiciled there and that a prior voluntary petition filed by the bankrupt
The pendency of an involuntary petition before adjudication, does not necessarily invalidate a subsequent voluntary jjetition filed in the .same district or in another district. The former petition may be invalid for lack of jurisdiction, when the facts appear; and other considerations also may sometimes justify, or even make desirable, a subsequent voluntary petition. In re Canfield, Fed. Cas. No. 2,880. Rere the question of jurisdiction will arise on each petition; and neither is necessarily exclusive of the other, since a possible change of domicile or residence from Macon to New York in July, 1899, might give jurisdiction in either district. Section 2.
The decisions on this subject under the act of 1807, are not precisely applicable to the present case, since the question of jurisdiction was not involved in any of them, and the double petitions were in the same court. In re Stewart. 3 N. B. R. 109, Fed. Cas. No. 13,419; In re Wielarski, 4 N. B. R. 390, Fed. Cas. No. 17,619; In re Canfield, supra; In re Flanagan, 5 Sawy. 312, 18 N. B. R. 439, Fed. Cas. No. 4,850.
Under ihe present act, not only in partnership, but also in individual bankruptcies, a petition may often be properly filed in either of two districts. As respects different petitions in partnership cases, General Order 6 (32 C. C. A. viii., 89 Fed. v.) provides fully; it also further provides, “that if two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicile,” although the case may be transferred by one court to the other, “if that is for the greatest convenience of the parties in interest.”
Section 32 of the act also provides that:
“In üic event petitions are filed against the same persons in different courts of bankruptcy, each oí which has jurisdiction, the case shall be transferred to the court which can proceed for the greatest convenience of parties in interest.”
The above provision, read in connection with section 1 (1), “tha! a person against whom a petition has been bled, shall include a person who has filed a voluntary petition” (In re Vaughan [D. C.] 97 Fed. 560), would require the present case to be heard in the district of the bankrupt’s domicile, or else transferred to that of his residence or place of business, if that would be for “the greatest convenience of the parties in interest.”
Both the provisions above referred to, however, contemplado a case in which each court has jurisdiction of the cause, and that question when raised must be first determined.
Section 18g provides that upon the filing1 of a voluntary petition, the judge “shall make the adjudication, or dismiss the petition.” No express provision is made in the act or in the rules as to when or how an Inquiry into the truth of the jurisdictional facts alleged in a voluntary petition is to be made; but considering the complica
From the facts appearing in the case dismissed on November 21st for want of jurisdiction, a part of which had to be obtained by a commission to Macon, I am satisfied that the greatest convenience of the parties in interest, both as respects the residence, domicile and principal place of business of the bankrupt, as well as respects all other matters pertaining to the proceedings in bankruptcy, in whichever district the adjudication may be had, will be best sub-served by a hearing of the whole case at Macon, should' jurisdiction there be established. The debts were all contracted while he was in business there; his present business is in connection with the corporation which succeeded his former firm; he is in its employ, acting under a power of attorney; the creditors desire the investigation to be had there, and there I think the investigation will be most convenient and effective.
The proceedings on the bankrupt’s new petition filed in this district on December 7th should, therefore, be suspended and stayed until the question of his adjudication at Macon is determined. If jurisdiction there is sustained, the further proceedings should for the convenience of parties be had in that district; if not sustained, the petition there will be dismissed and adjudication here will follow.
