In re Risteen

• Decision Date: 09 May 1903
• Docket Number: 7,347.
• Citation: 122 F. 732
• Parties: In re RISTEEN.
• Court: U.S. District Court — District of Massachusetts

122 F. 732

In re RISTEEN.

No. 7,347.

United States District Court, D. Massachusetts.

May 9, 1903

Rogers & Worth, for petitioning creditors.

William W. Towle, for executrix.

LOWELL District Judge.

This was an involuntary petition against the proprietor and manager of the Copley Square Hotel, situated in Boston, and containing 180 rooms, where the respondent had his usual place of abode. On March 2, 1903, at the time the officer went to the hotel, the respondent was lying ill and unconscious in Newton, where he had been for several days. The officer handed the subpoena and copy of the petition to the clerk of the hotel, who informed the officer that the respondent was not there, but was at Newton, and that he would give the papers to him. The respondent never received the papers, and had no knowledge of the service, but died unconscious early in the morning of March 4th. His executrix now pleads in abatement that the service was insufficient.

Section 18a of the bankrupt act, Act July 1, 1898, 30 Stat. 551, c 541 (U.S. Comp. St. 1901, p. 3429), as amended by the Ray Bill, Act Feb. 5, 1903, Sec. 6, 32 Stat. 798, c. 487 provides in substance, that service of the petition 'with a writ of subpoena shall be made upon the person therein named as defendant, in the same manner in which service of such process is now had upon the commencement of a suit in equity in the courts of the United States'; but, in case personal service cannot be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits to enforce a legal or equitable lien in courts of the United States. ' The reference to service of process upon the commencement of a suit in equity in the United States courts is plainly to equity rule 13, which provides that 'the service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant with some adult person who is a member or resident in the family. ' This court has to determine whether valid service of a creditors' petition in bankruptcy can be made upon the respondent in both the methods provided by equity rule 13 viz: (1) By delivery to the respondent personally, and (2) by leaving a copy at his usual place of abode; or, on the other hand, valid service is restricted by the qualifying clause of section 18a to the first method; so that, where service by delivery to the respondent personally cannot be made, there must be a publication in the manner provided by the statute of March 3, 1875, c. 137, Sec. 8, 18 Stat. 472 (U.S. Comp St. 1901, p. 513), the law referred to in the latter part of section 18a. Can an involuntary petition be validly serviced upon the respondent by leaving the subpoena and copy of the petition at his last and usual place of abode, or is valid service limited to a delivery to the respondent personally and to a publication according to the statute of 1875? This question seems to be settled by form 4 attached to the general orders promulgated by the Supreme Court (18 Sup.Ct. xx). The form entitled 'Order to Show Cause Upon Creditors' Petition' expressly directs 'that a copy of said petition together with a writ of subpoena be served upon said-- by delivering the same to him personally, or by leaving the same at his last and usual place of abode in said district. ' With this construction of the statute agree Loveland on Bankruptcy, p....