20 F. Cas. 1065 | W.D. Wis. | 1877
This cause came on to be heard before the court upon the application of the petitioners, by H. M. & H. A. Lewis, their counsel, and upon the motion of Philo A. Orton and George S. Anthony, two of the creditors, by Gregory & Pinney, their counsel, to dismiss the petition for want of jurisdiction in the respects following: (1) That it appears upon, the face of the petition that the same is not signed and verified by a sufficient proportion in number of the creditors. (2) That it does not appear from the petition that the officer signing for the National Bank of Galena had authority to act for the bank in the matter. (3) That the authority of L. D. Lange, who signs the names of Morrison, Plummer & Co., does not appear in the petition. (4) That Francis B. Newhall, one of the petitioning creditors, does not sign the petition. (5) That the several debts of eight of the petitioning creditors are for less than two. hundred and fifty dollars. (6) That the petitioning creditors have filed no proof of their several debts.
Some, if not all of these objections to the petition, are well taken; but I am not able to concur with the defendant’s counsel that the court has no jurisdiction of the case which would enable it to allow amendments to cure the defects complained of. It is quite clear that the authority of R. H. McClellan, president of the National Bank of Galena, to act for the bank in the matter, should be set forth in the petition, as the president, by virtue of his. office as such, has not the power.. In re McNaughton [Case No. 8,912], But it does not follow that the petition should be dismissed for this reason. I think the court may and should order an amendment to remedy the defect. This will not be adding a new cause of action, but perfecting a defective allegation in a cause already set forth. The same with the case of L. D. Lange, who signs as the agent for Morrison, Plummer & Co. The petition should aver specially his authority to act in the matter for them. But the defect is not jurisdictional and is not a cause for dismissing the petition. It may be amended.
So I think with the other objections. The objection ■ mainly relied upon, and the one having the greatest show of authority, if not of reason to support it, is, that several of the creditors signing the petition, as appears from the schedule of claims set out in the body of the petition, have claims amounting to less than two hundred and fifty dollar's each. The allegations in the petition are entirely sufficient on this point, and show that the creditors signing the petition constitute
There is but one case that I have found where it is held that such a defect was so far jurisdictional as to deprive the court of all power of amendment. That is In re Rosenfields [Case No. 12,001]. But that case is expressly overruled in a later case in the same court (In re McKibben [supra]), and was disapproved, and the contrary ruling made in the well considered cases of Ex parte Jewett [Case No. 7803], and Ex parte Morris [Id. 9,823], by Lowell, J., in the district court for Massachusetts. If any further authority was needed, we have it in the case of In re Williams [Id. 17,700], decided' by Judge Drummond, where such an amendment is expressly sanctioned and held to relate back to the commencement of the proceeding in bankruptcy. These cases are decisive of the question here presented.
The motion to dismiss is overruled, and upon request of counsel for petitioners they are allowed ten days in which to file an amended petition curing the several defects complained of.