IN RE WILSON & TOMLINSON
| Decision Date | 27 January 1937 |
| Docket Number | No. 53048.,53048. |
| Citation | 18 F. Supp. 999 |
| Parties | In re WILSON & TOMLINSON. |
| Court | U.S. District Court — District of Massachusetts |
William G. Guernsey (of Bartlett, Jennings & Smith), of Boston, Mass., for Wm. A. Hamilton Co., creditor.
Herman Snyder (of Samuel L. Bailen), of Boston, Mass., for First Nat. Bank.
Sidney J. Kagan, of Boston, Mass., for trustee.
From the referee's certificate, it appears that William W. Wilson and Everett F. Tomlinson were adjudicated bankrupts both individually and as a partnership.
The First National Bank filed a proof of claim against the bankrupts, which proof alleged: "that the said Wilson and Tomlinson, the persons by whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said corporation in the sum of $20,076.65; that the consideration of said debt is as follows: Three promissory notes, with interest thereon, originals of which are hereto attached."
The referee has attached to his certificate the three notes referred to. One is for $10,000 signed by Wilson & Tomlinson and indorsed by Wilson and Tomlinson as individuals. The other two notes, aggregating originally $10,000, were notes of third parties indorsed by Wilson and Tomlinson as individuals.
It appears that through the efforts of the First National Bank, or its attorney, assets were discovered which were found to belong in part to the individual estate of Wilson. After the expiration of the time for filing claims, the First National Bank sought to amend its proof of claim so that it could prove against Wilson individually as indorser upon the said notes. The referee refused to allow any amendment on the theory that the motion to amend was not, in fact, a motion to amend, but rather a motion to prove a claim against another estate, following the case of In re McCallum & McCallum, (D.C.) 127 F. 768. See, to the same effect, In re Ealy et al. (D. C.) 31 F.(2d) 314.
I agree with the referee in the underlying proposition that a motion to amend which is not based upon some assertion of a claim against the same estate is not a motion to amend at all, but an attempt to prove a claim in contravention of the statute (Bankr.Act § 57n, 11 U.S.C.A. § 93(n). A claim against a partnership and one against the individuals composing the partnership are against two different bankrupt estates. Schall v. Camors, 251 U.S. 239, 254, 40 S.Ct. 135, 64 L.Ed. 247; Liberty National Bank of Roanoke v. Bear, 276 U.S. 215, 48 S.Ct. 252, 72 L.Ed. 536; In re Hurley Mercantile Co. (C.C.A.) 56 F.(2d) 1023.
The bank has cited several cases in which the courts have displayed extreme liberality in allowing amendments to claims, but with the...
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