In re Diamond Fuel Co.
| Decision Date | 22 May 1922 |
| Docket Number | 314. |
| Parties | In re DIAMOND FUEL CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Charles R. Hickox and D. M. Tibbetts, both of New York City of counsel), for appellants.
Nash Rockwood, of New York City (Thos. F. Barrett, of Clarksburg W. Va., and R. H. McNeill, of Washington, D.C., of counsel) for respondents.
Stetson, Jennings & Russell, of New York City (Theodore Kiendl, Jr., and Frederic W. Girdner, both of New York City, of counsel), for petitioning creditors and interveners.
Before ROGERS, HOUGH, and MAYER, Circuit Judges.
This unduly voluminous record presents but one point necessary for decision. Three alleged creditors promoted and signed an involuntary petition against Diamond Fuel Company. The act of bankruptcy alleged is a conveyance unlawfully preferring the grantee, and the date of such unlawful preference is within four months of petition filed. We agree with the court below that this conveyance and its preferential nature are fully proven, and find it unnecessary to discuss this matter further.
The present appellant intervened and answered the petition, denying that one of the signers of the petition for adjudication was a creditor of the alleged bankrupt. Thereupon, and more than four months after commission of the act of bankruptcy, certain other creditors intervened and were permitted to join in the petition for adjudication. The result was that at trial there were three or more undoubted creditors demanding adjudication.
We will assume (but not decide) that one of the three parties who swore to the original petition as creditors was not in point of fact a creditor at all. This means that the proof of indebtedness was insufficient, but the allegation of indebtedness was in point of form perfect.
The one question raised by this appeal is whether, assuming such lack of proof on the part of one of the three original petitioners, the suit or proceeding was validated by the addition, after the expiration of the four-month period, of other petitioners, who did prove that they were creditors. This court has, we think, clearly indicated the distinction between an amendment or addition to a petition jurisdictionally defective and similar action in respect of one jurisdictionally sufficient.
An amendment inserting a new act of bankruptcy speaks only from the date of amendme...
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...amendments to petition allowed only where original petition contained necessary averments required by act); accord In re Diamond Fuel Co., 283 F. 108, 109 (2d Cir.1922) (contrasting petition jurisdictionally defective for failing to plead act of bankruptcy in proper form, and petition which......
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...failure to disclose in the petition the commission of any act of bankruptcy, the petition is jurisdictionally defective. In re Diamond Fuel Company, 2 Cir., 283 F. 108; In re Parker, 7 Cir., 283 F. 404; In re D. F. Herlehy Company, D.C., 247 F. 369. Such jurisdictional defect is sufficient ......
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National Refining Co. v. Pennsylvania Petroleum Co., 9691.
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In re Diamond Fuel Co.
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