298 F. Supp. 1053 | D. Colo. | 1969
On November 22, 1968, Pete Lien & Sons, Inc., as the sole petitioning creditor, filed a petition to have the respondent, Colorado Lime Company, adjudicated an involuntary bankrupt. Petitioner alleged that it is a creditor of Colorado Lime Company in an amount of $500.00 in excess of any security and that Colorado Lime had less than twelve creditors. Respondent in its answer specifically denied that its creditors were less than twelve in number on the date the petition was filed and attached a list of twenty-five creditors with their addresses and a brief statement of the nature of their claims and the amounts thereof.
Although other issues have been argued, we need only consider the threshold issue of jurisdiction to entertain the petition. Proper notices have been dispatched, there has been a hearing in open court, briefs have been filed and the matter now stands submitted.
Section 59(e) of the Bankruptcy Act furnishes the guidelines to be used in determining the number of creditors under section 59(b). Section 59(e) provides :
“In computing the number of creditors of a bankrupt for the purpose of determining how many creditors must join in the petition, there shall not be counted (1) such creditors as were employed by the bankrupt at the time of the filing of the petition; (2) creditors who are relatives of the bankrupt or, if the bankrupt is a corporation, creditors who are stockholders or members, officers or members of the board of directors or trustees or of other similar controlling bodies of such bankrupt corporation; (3) creditors who have participated, directly or indirectly, in the act of bankruptcy charged in the petition; (4) secured creditors whose claims are fully secured; and (5) creditors who have received preferences, liens, or transfers void or voidable under this Act.”
Both parties agree that eight of the twenty-five creditors listed in the answer are not to be counted under § 59(e),
Petitioner contends that eight of the creditors
In any event, the more recent cases appear to uniformly disapprove In re Blount and its followers. They hold that creditors holding small claims for current expenses must be counted in computing the number of creditors who must join in the involuntary petition. In re Kirk, 198 F.Supp. 771 (W.D.Pa.1961); Grigsby-Grunow Co. v. Hieb Radio Supply Co., 71 F.2d 113 (8th Cir. 1934); In re Luther, 63 F.Supp. 83 (W.D.Mo.1945), aff’d, 151 F.2d 397 (8th Cir. 1945), cert. denied, 327 U.S. 781, 66 S.Ct. 681, 90 L.Ed. 1009 (1946); In re Murray, 14 F.Supp. 146 (W.D.N.Y.1936); In re Hall, 27 F.2d 999 (W.D.Pa.1928); In re Alden, 2 F.2d 61 (D.Mass.1924); In re Brown, 111 F. 979 (E.D.Mo.1901). The basis of the decisions is that the exclusion of Blount is not in the Bankruptcy Act [§ 59(e) and its predecessors] and, therefore, that the courts are not justified in engrafting this additional exclusion; that the proper appeal was to Congress rather than to the courts.
It is concluded that the creditors whose claims are “small”, whatever that may be, must be counted.
The Clerk is directed to dismiss the creditor’s petition and the cause of action.
. Creditor Nature of Claim Amount
West Bearings General supplies $ 69.89
Colorado Springs Utilities Utilities 2,120.04
Colorado Springs Machine Machine repairs 297.31
Castle Concrete Supplies 4,842.90
Electric Motor Electrical repairs 65.00
Justice Tire Co. Tires and service 695.96
Motor Parts & Supplies General supplies 200.97
Neil Momley Radiator Repairs 7.00
Pikes Peak Fuel (Division of Golden Cycle Corp.) Lessor — rent and royalties 1,736.52
Supperstein Steel & Supply General supplies 52.36
D. R. Scott Oil Gas and oil 99.84
Toops & Weingarth Accounting services 235.00
Union Supply Supplies (920.91)
Walker Bros. Lumber Supplies 18.56
Steel, Jacobs, Gardner Insurance 128.00
Pete Lien & Sons Merchandise account 24,167.21
Capitol Sanitary
Industrial Laundry Laundry 94.54
Acme Welding Development Engineering Welding supplies Engineering supplies 54.59 2,688.30
Leslie A. Gross Legal services 2,000.00 (est.)
Brake Service Wholesale Brake service 237.07
Secured
. The Golden Cycle Corporation, Colorado Springs National Bank, C.I.T., Ingersol Rand, Union Supply Company, Pete Lien & Sons, Inc., Leslie A. Gross, and Pike’s Peak Fuel.
. West Bearings — $69.89 for general supplies ; Electric Motor — $65.00 for electrical repairs; Neil Momley Radiator— $7.00 for repairs; Supperstein Stell & Supply — $52.36 for general supplies; D. R. Scott Oil — $99.84 for gas and oil ; Walker Bros. Lumber — $18.56 for supplies ; Capitol Sanitary Industrial Laundry — $94.54 for laundry; and Acme Welding — $54.59 for welding supplies.