293 F. 367 | 1st Cir. | 1923
This is an appeal from a decree of the District Court for Massachusetts adjudging the appellant a bankrupt and denying his motion to recommit the report of the master.
In the petition it also was alleged that McNutt was insolvent and within four months next preceding the date of the petition had committed an act of bankruptcy in that he had, on the 14th day of December, 1922, while insolvent, executed and delivered to the Beacon Trust Company a mortgage of a portion of his property with intent to prefer such creditor over his other creditors. There was an affidavit appended to the petition, in which the petitioners (the appellees) made oath to the statements contained in the petition.
On January 8, 1923, McNutt filed an answer, in which he denied that he had committed the act of bankruptcy set forth in.the petition or that he was insolvent.
On February 8, 1923, one of the appellees, Charles Barron, intervened in said action and alleged that he was an unsecured creditor to the extent of $334, and on the same day the District Court referred the case to a master, to ascertain and report the facts raised by the pleadings.
Hearings were had before the master, at which counsel for the respondent appeared, introduced evidence, and argued the case; but the respondent failed to appear and produce his books. On April 11, 1923, the master filed his report, in which he found that the respondent was
On April 26, 1923, an order was entered for a hearing before the court on April 30, on the question of adjudication, and notice of the hearing was given on that date. At the hearing before the court on this question McNutt presented a motion to recommit the report to the master, with instructions to incorporate the evidence on which he based his findings. The parties having been heard as to these matters, they were taken under advisement, and on June 29 the court filed an opinion denying the respondent’s motion to recommit, and on July 3, 1923, entered an order adjudicating him a bankrupt, from both of which orders or decrees this appeal was taken.
In the first two assignments of error the appellant questions the validity of the decree of adjudication on the ground that the court erred in ruling that the allegations of the petition — to the effect that the petitioners were unsecured creditors in the amount stated in the petition — ■ were not denied in the answer, and therefore it was unnecessary for them to prove affirmatively that they were such. In support of these assignments appellant contends that the answer was in the form adopted by the Supreme Court of the United States, and that such answer was a general denial of all the allegations of the petition, although it only denied that McNutt committed the act of bankruptcy set forth in the petition and was insolvent. In supoort of his contention he relics upon In re West (Second Circuit) 108 Fed. 940, 48 C. C. A. 155.
The decrees of the District Court are affirmed, without costs to the appellees.
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