Finn v. Carolina Portland Cement Co.

• Decision Date: 28 March 1916
• Docket Number: 2859-2861.
• Citation: 232 F. 815
• Parties: FINN v. CAROLINA PORTLAND CEMENT CO. et al. SILSBE v. SAME. CLARKE v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F. 815

FINN v. CAROLINA PORTLAND CEMENT CO. et al. SILSBE v. SAME.

CLARKE v. SAME.

Nos. 2859-2861.

United States Court of Appeals, Fifth Circuit.

March 28, 1916

The three petitions to revise raise the same question of jurisdiction and were submitted together. The following statement of the case, appearing in the brief of counsel for the petitioners, with slight changes, is here inserted:

An involuntary petition in bankruptcy was filed by the respondents against H. R. Finn in the District Court of the United States for the Southern District of Florida on the 20th day of January, 1915. The said H. R. Finn, on January 27, 1915, filed a motion to dismiss said petition for various reasons therein set forth, but not raising the question of jurisdiction. The judge, on July 18, 1915, made an order granting the motion to dismiss, unless the petitioning creditors, within five days, filed an amended petition. In pursuance of said order the petitioning creditors, the respondents here, filed their amended petition on the 21st day of July, 1915. Thereupon an order was made requiring Finn to move to dismiss, plead, or answer the amended petition within 15 days from the date of the date of the service of a copy of said amended petition and a copy of said order.

On August 23, 1915, Richard R. Silsbe, one of the petitioners here and a creditor of Finn in the sum of $1,000, filed objections to the jurisdiction of the court and prayed that the petition against Finn be dismissed, upon the ground that Finn did not have his principal place of business, and did not reside nor have his domicile, and did not transact any business whatever, within the Southern district of Florida for a period of six months next preceding the filing of said petition, and alleging that Finn, for more than six months next preceding the filing of said petition, had had his residence and domicile in the city of New York and state of New York. On the same day William F. Clarke, one of the petitioners here, alleging that he was a creditor of Finn in the sum of $1,326.95, filed the same objections to the jurisdiction of said court.

The petitioning creditors, respondents here, on August 23, 1915 and on August 28, 1915, filed motions to strike the objections to the jurisdiction of the court filed by Silsbe and Clarke. The court, on September 16, 1915, granted the motions to strike the said objections to the jurisdiction of the court, and on the said 16th day of September, 1915 adjudged Finn to be a bankrupt.

On October 15, 1915, Finn applied to the court to set aside the adjudication of bankruptcy, upon the ground that he did not have his place of business, nor reside, nor have his domicile within the Southern district of Florida for six months, or the greater portion thereof, preceding the filing of sad petition, and because he did not at any time within the six months next preceding the filing of said petition have any place of business or reside or have his domicile within the Southern district of Florida, but that during said period he resided and had his domicile in the city of New York and state of New York, and tendered to the court a sworn answer alleging said facts. The court denied the motion to set aside the adjudication of bankruptcy on October 19, 1915.

Thereafter the petitioners filed their petition to this court to review and revise the orders of the District Court sustaining the jurisdiction of that court.

E. P Axtell and C. D. Rinehart, both of Jacksonville, Fla., for petitioners.

E. J. L'Engle, Martin H. Long, and Robert R. Milam, all of Jacksonville, Fla., for respondents.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

MAXEY District Judge (after stating the facts as above).

The question to be decided is whether the trial court had jurisdiction to adjudge H. R. Finn a bankrupt. Finn and the two creditors, Silsbe and Clarke, interposed objections, verified by affidavit, to the jurisdiction as follows:

'That the said Finn did not have his principal place of business and did not reside and did not have his domicile and did not transact any business whatever within the Southern district of Florida for a period of more than six months next preceding the filing of said petition. That his residence and domicile during said time were in the city of New York, state of New York.'

The objections of the two creditors were filed prior to the order of adjudication, and those of the alleged bankrupt subsequent thereto. They were all overruled, without inquiry on the part of the court touching the facts. To determine whether the action of the court was erroneous, resort must be had to the Bankruptcy Act. That part of section 2 of the act, having application to the question under consideration, provides as follows:

'That the courts of bankruptcy as hereinbefore defined, viz., the District Courts of the United States

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