In re Burka

• Decision Date: 19 March 1901
• Parties: In re BURKA.
• Court: U.S. District Court — Western District of Tennessee

107 F. 674

In re BURKA.

United States District Court, W.D. Tennessee.

March 19, 1901

J. R Deason and A. J. Harpole, for creditors.

HAMMOND J.

The petition alleges that the insolvent debtor is insane, but that before he became so he committed the acts of bankruptcy averred therein. It charges a fraudulent sale of his entire stock of goods for an inadequate consideration to one Fish with intent to hinder and delay his creditors; also that he suffered a fraudulent preference by judicial process of attachment; and that in the attachment proceedings, a receiver having been appointed, the stock of goods is being administered for the benefit of the fraudulently preferred creditor and the fraudulent vendee, the receiver being a brother of the latter. Also that the insolvent debtor's other property has been picked up here and there by creditors proceeding against him since he became insane. It alleges and the affidavits show, that the debtor resided at Union City, in this state, and carried on business there as a merchant for the greater portion of six months preceding the filing of the petition (Act 1898, Sec. 2l (30 Stat. 545)) but that after the transactions aforesaid he went temporarily to the state of Alabama, to visit friends, or for other purposes, and that while there, becoming insane, he was, by proper proceedings, adjudged a lunatic, and confined in an asylum in that state. No committee or guardian was appointed for him there, and none has been appointed for him or for his property in this state, for which reason his property and business affairs have been and are neglected. Process on the petition having been returned that the defendant was not to be found in this district, upon affidavit that the foregoing facts were true the court here directed an order to be entered reciting those facts, the return of the process not found, and that no appearance had been had, although notice of the bankruptcy proceedings had also been served upon Fish, the receiver, and requiring the insolvent debtor to appear, plead, answer, demur, or otherwise defend the petition on or before a day named therein; that a copy of the order be served on the said defendant debtor wherever found, together with a copy of the petition; and also that the order be served on Fish, the receiver aforesaid. This order was executed by the marshal of the Northern district of Alabama by reading a copy of it to the defendant in the lunatic asylum at Tuscaloosa, Ala., and delivering to him a copy of the petition in bankruptcy, all in the presence of the superintendent or other official of the asylum. Bankr. Act. 1898, Sec. 18a (30 Stat. 552); Rev. St. Sec. 738; Act March 3, 1875, c. 137, § 8 (18 Stat. 472); 1 Supp.Rev.St.p. 176; 1 Desty, Fed.Proc.p. 146, § 25 et seq. No publication has been had, but that was deemed unnecessary, since the process order was served personally on the defendant. Publication is required by the act of 1875 in equity proceedings only when the process order has not been personally served wherever the defendant may be found. Being a lunatic, possibly it would have been well if the court had also required publication to notify his friends; but the very language of the act of 1875 is that publication shall be made 'where such personal service upon such absent defendant or defendants is not practicable.' 1 Desty, Fed.Proc. § 8. Under the general discretion given to the court in the matter, and as the obvious propose of the statute is to give the fullest notice possible, if the absent defendant be under disability, especially of lunacy, and his friends and property are found here, I think that a wise precaution would suggest a further direction by the court that publication be also made, in addition to that kind of personal service on a lunatic which is 'practicable,'-- to use the language of the act of 1875. But, since the bankruptcy statute also requires publication only 'in case personal service cannot be made' (section 18a), notwithstanding the omission of the wiser precaution in this case, I have concluded not to delay this application for the appointment of a guardian ad litem because of it. It is not technically required, and the only result would be the appointment at last of a guardian ad litem, in any event.

It would be premature to determine whether one who is insane may be adjudicated bankrupt for acts committed either before or after the lunacy began. Hill. Bankr. 50, note; Avery & H Bankr. 36; Coll. Bankr. (3d Ed.) 48; Bump, Bankr. (9th Ed.) 385; In re Funk, 4 Am.Bankr.R. 96, 101 F. 244; In re Pratt, 2 Low. 96, 19 Fed.Cas. 1248 (No. 11,371); In re Marvin, 1 Dill. 178, 16 Fed.Cas. 927 (No. 9,178), and note; In re Murphy, 10 N.B.R. 48, 17 Fed.Cas. 1030 (No. 9,946); In re Weitzel, 7 Biss. 289, 29 Fed.Cas. 604 (No. 17,365). So it is needless now to inquire whether there be any distinction between voluntary petitions by the guardian or committee of a lunatic and petitions in invitum by the creditors against the lunatic or his guardian or committee. These defenses will be...