Burkhart v. German-American Bank

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Citation: 137 F. 958
• Parties: BURKHART v. GERMAN-AMERICAN BANK.
• Decision Date: 01 November 1904

137 F. 958

BURKHART
v.
GERMAN-AMERICAN BANK.

United States District Court, S.D. Ohio.

November, 1904

Van Deman, Burkhart & Shea, for plaintiff.

Van Pelt, Dale & Ferneding, A. J. Hess, W. J. Emmons, Goeke & Haskins, and Prescott Smith, for defendant.

THOMPSON, District Judge.

The petition, as amended, among other things alleges that the German-American Bank is a partnership engaged in the general banking business; that it and each and [137 F. 959] all of the copartners composing it are insolvent; that in an action brought in the common pleas court of Shelby county, Ohio, a receiver was put in charge of its property because of its insolvency; that on or about August 23, 1904, it transferred, while insolvent, a portion of its property to certain of its creditors, with intent to prefer such creditors over its other creditors; and prays that the bank and copartners composing it, and each of them, may be adjudged bankrupts. The defenses are:

(1) That the bank is not a copartnership, but a corporation. (2) It says that it was not a party to the suit in which the receiver was appointed, and it claims that the evidence shows that the receiver was appointed upon an ex parte hearing to protect and preserve the property for the time being and until the further order of the court.

It is not denied, and the evidence conclusively shows, that the bank is, and was at the time of the appointment of the receiver and at the time of the filing of the petition herein, insolvent; and it is not denied, and the evidence conclusively shows, that the defendant without four months preceding the filing of the petition in bankruptcy transferred a portion of its property with intent to prefer certain of its creditors; and the question presented for the determination of the court is whether the defendant is a corporation, and not a partnership. Clause 6, Sec. 1, c. 541 Bankr. Act July 1, 1898 (30 Stat. 544 (U.S. Comp. St. 1901, p. 3419), 11 O.F.D. 76), defining the words and phrases used in the act, declares that:

'Corporations shall mean all bodies having any of the powers and privileges of private corporations not possessed by individuals or partnerships, and shall include limited or other partnership associations organized under laws making the capital subscribed alone responsible for the debts of the association.'

And it is urged that this bank, having some of the powers and privileges of a private corporation not possessed by...