In re Haff

• Citation: 136 F. 78
• Decision Date: 18 January 1905
• Docket Number: 89.
• Parties: In re HAFF.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

136 F. 78

In re HAFF.

No. 89.

United States Court of Appeals, Second Circuit.

January 18, 1905

Franklin Pierce, for petitioner.

Leo Levy, for respondent.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

TOWNSEND Circuit Judge.

February 2, 1904, Thomas Lenane filed a petition that Charles E. Haff be adjudged a bankrupt; alleging that he was a creditor of said Haff, and that the creditors were less than 12 in number, and setting forth a single act of bankruptcy, alleged to have been committed on December 3, 1903. February 13th Haff filed his answer, denying insolvency, and alleging that his creditors were 12 and more in number. February 25th two other creditors intervened in the proceedings under said original petition. March 24th Edward Ridgely, as receiver of the Equitable National Bank, filed a petition that Haff be adjudged a bankrupt, and therein prayed to be permitted to intervene in the earlier involuntary proceedings. This petition was addressed to the judges of the court; stated the representative character of the petitioner; the principal place of business of the debtor for the greater portion of the preceding six months; that he owed debts to the amount of $1,000; was insolvent; was neither a wage earner, nor chiefly engaged in farming, etc.; the amount of petitioner's claim, etc. The petition further alleged not only said act of bankruptcy set forth in the original petition, but other acts of bankruptcy alleged to have been committed 'on or about the 3d day of December, 1903, and on or about the 3d day of February, 1904,' and concluded with a prayer that service thereof, with subpoena, might be made on the alleged bankrupt, and that he might be adjudged a bankrupt. On said date the court ordered that said Ridgely be permitted to intervene as a petitioning creditor, and that the alleged bankrupt file an answer to said petition. April 7th, pursuant to said order, Haff filed his answer denying the alleged acts of bankruptcy, and again asserted that the number of his creditors was more than 12; having first filed a reservation of his rights to object to the sufficiency and propriety of said Ridgely petition, and of the order of the court thereon. April 12th Haff filed a petition that the allegations of new acts of bankruptcy not included in the earlier petition be stricken therefrom on the ground that they were not authorized by the bankrupt act, and that Ridgely's only relief was by joinder in the earlier petition. April 18th the attorney for Ridgely filed an affidavit stating 'that, as far as appears by the record in this court, the creditors of said Haff are not in excess of twelve in number,' and that the Ridgely petition, 'in addition to being an intervening petition, was a petition de novo, and deponent knows of not statute nor any provision which prevents a creditor from alleging new acts of bankruptcy prior to the filing of the original petition February 2, 1904, and that the aforesaid Edward Ridgely has expressly asked that the alleged bankrupt be adjudicated a bankrupt upon the petition filed in his behalf. ' The affiant asked, 'in behalf of said Edward Ridgely, petitioning creditor, that an order be made herein consolidating the two petitions filed herein against said Charles E. Haff, and that the petition filed on February 2, 1904, be made to conform, by proper amendment and additions pursuant to general order 7 (89 F. v), to the petition filed in behalf of Edward Ridgely in that there be inserted therein the acts of bankruptcy referred to in the petition of Charles E. Haff, to which this affidavit is an answer.'

April 25th the court indorsed on Haff's petition the following memorandum:

'If an intervening creditor wishes to rely on additional acts of bankruptcy, I think he has a right to do so. The better practice is, perhaps, to enter an order to intervene, and then apply to amend, but I see no objection to alleging the additional acts in the petition to intervene. If a formal order to amend is preferred in this case, it will be granted, and may be deemed granted. I think, however, that the additional acts of bankruptcy must have occurred as early or before the act alleged in the original petition. The acts alleged, therefore, in paragraphs 'c' and 'e' of the intervening petition, should be disallowed.'

April 30th the following order was entered:

'Ordered, that the petition filed herein on the 2d day of February, 1904, by Thomas Lenane, Theodore F. Hoffman, and Oscar J. Dennis to have Charles E. Haff adjudicated an involuntary bankrupt, be, and the same hereby is, amended so that the same shall in all things conform, nunc pro tunc, with the petition filed herein on March 25, 1904, by said Edward Ridgely, as receiver, as hereinafter modified.'

The order further provided that the allegations of acts of bankruptcy in February, 1904, in the Ridgely petition, be stricken therefrom.

This petition seeks to review said order on the ground that:

'Said District Court erred in permitting an application to be made on the 18th day of April, 1904, to amend the original petition, filed as aforesaid on the 2d day of February, 1904, by inserting therein allegations of additional acts of bankruptcy occurring more than four months prior to the date of said motion to amend.'

The date of the additional acts of bankruptcy inserted by amendment in the original petition was December 3d. More than four months had elapsed, therefore, before the application of April 18th for the amendment.

The general rule seems to be that an original petition cannot be amended by setting out therein acts of bankruptcy not referred to in the original petition, and occurring more than four months before the application for an order allowing the amendment. In re Crowley & Hoblitzell, 1 N.B.R. 516; In re Craft, 2 N.B.R. 111, 6 Blatchf. 177, Fed.Cas.No. 3,317; In re Leonard, 4 N.B.R. 562, Fed.Cas.No. 8,255; White v. Bradley Timber Co. (D.C.) 116 F. 768; Stern v. Schonfield, 22 Fed.Cas. 1310; In re Alfred Stevenson, 2 Am.Bankr.Rep. 66, 94 F. 110. See, also, In re Maund, 1 Law.Reps.Queen's Bench Div. p. 194 (1895).

Counsel for respondent does not deny that the law is as thus stated but he asserts that the Ridgely petition also was an original petition, and that the application to intervene was merely for the protection of his client's rights by a participation in the proceedings under the earlier petition, in so far as such proceedings might apply to the administration and preservation of the estate. The Ridgely petition appears to have been framed as an original petition, and, as such, as already shown, it contains the general allegations of an original petition, and a prayer for subpoena. It is conceded that such an original petition might have been subsequently filed, setting up additional acts of bankruptcy within four months from its date. General order No. 11 (89 F. vii); White v. Bradley Timber Co., supra. General order No. 7 (89 F. v)...