Hovland v. Farmers State Bank
Decision Date | 02 January 1926 |
Docket Number | No. 270.,270. |
Citation | 10 F.2d 478 |
Parties | HOVLAND v. FARMERS' STATE BANK OF CHRISTINE, N. D., et al. |
Court | U.S. Court of Appeals — Eighth Circuit |
L. H. Joss, John N. Ohman, R. H. Fryberger, and W. G. Parker, all of Minneapolis, Minn., for petitioner.
Charles Burke Elliott, Nicholas Doll, and N. M. Coursolle, all of Minneapolis, Minn., for respondents.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
On June 23, 1923, the respondents filed an involuntary petition in bankruptcy against the petitioner. The allegations of that petition material to this inquiry are:
On December 3, 1923, the respondents, with leave of court first had and obtained, filed an amended petition, in which they alleged as acts of bankruptcy the following:
To the amended petition the petitioner here interposed a plea in abatement, in which he alleged that for the greater portion of the period of six months next preceding the filing of the petition, and for the greater portion of the period of six months next preceding the filing of the amended petition, he did not reside, have his principal place of business, or have his domicile at Minneapolis, in the district of Minnesota, and a plea in bar in which he set up that the original petition alleged no acts of bankruptcy, that the amended petition did not relate back to the date of the filing of the original petition, and that the acts of bankruptcy alleged in the amended petition occurred more than four months prior to the filing thereof.
The matter was thereupon referred to the referee in bankruptcy, to take the evidence upon the issues raised by these pleas. The evidence was taken before the referee and reported to the District Court in writing. Thereafter the District Court entered its order overruling both pleas. The petition here seeks to revise that order.
The testimony adduced before the referee shows that the alleged bankrupt, the petitioner here, for a period of 19 years immediately prior to March 10, 1923, resided and had his domicile in the city of Minneapolis, Minn.; that for many years he was president of the Merchants' & Manufacturers' State Bank; that in the month of February, 1923, he resigned from that office, left Minneapolis, and went to North Dakota; that on March 10, 1923, his wife, Oline Hovland, joined him at Williston, N. D.; that petitioner was then ill, and his physician advised him to go to California; that petitioner, accompanied by his wife, left Williston on March 10, 1923, with the intention of establishing a home somewhere in Southern California; that they arrived at San Diego March 22, 1923; that from then until September 18, 1923, they resided at various places in Southern California; and that on September 18, 1923, the testimony of the petitioner in this matter was taken by deposition at Los Angeles. Upon the point as to whether or not he had established a residence at any particular point in Southern California, he testified:
Undoubtedly up to March 10, 1923, the domicile of the petitioner was at Minneapolis. That remained his domicile until he acquired a new one elsewhere. While the proof shows that he had determined to acquire a new domicile in California, he had not chosen, when either petition was filed, a definite place in Southern California, as such new domicile. Until such choice was made, his domicile remained in Minneapolis. Cooper et al. v. Beers et al., 143 Ill. 25, 33 N. E. 61, and note, 40 L. R. A. (N. S.) 986; 9 R. C. L. § 18, p. 553.
The finding of the trial court that petitioner had his domicile at Minneapolis at the times the petition and amended petition were filed, not only is supported by substantial evidence, but it appears conclusively that no other correct finding could have been made. The plea in abatement was therefore properly overruled.
The plea in bar presents this question: Can a petition which alleges, under subdivision a (1) and (2) of section 3 of the Bankruptcy Act (Comp. St. § 9587), acts of bankruptcy in the general language of the statute, be amended by alleging specific acts of bankruptcy under those subdivisions, committed more than four months prior to the filing of the amended petition? The trial court answered the question in the affirmative.
The rule which governs the reciprocal effect of the doctrine of...
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