Massagli v. TI Butler Co., 5828.

• Decision Date: 08 April 1930
• Docket Number: No. 5828.,5828.
• Citation: 39 F.2d 346
• Parties: MASSAGLI v. T. I. BUTLER CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.2d 346 (1930)

MASSAGLI v. T. I. BUTLER CO. et al.

No. 5828.

Circuit Court of Appeals, Ninth Circuit.

March 17, 1930.

On Motion for Modification of Decree, April 8, 1930.

Ernest J. Torregano and Charles M. Stark, both of San Francisco, Cal. (August B. Rothschild, of San Francisco, Cal., of counsel), for appellant.

Milton Newmark and Byron Coleman, both of San Francisco, Cal., for appellees.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an order adjudging appellant a bankrupt. Appellant made a motion to dismiss the petition which was denied, and failing to otherwise answer the petition, an order of adjudication in bankruptcy was entered. The sole point presented on appeal is the question of whether or not the petition was properly verified. The verification is in the form provided by the law of California for the verification of pleadings and contains the following phrase: "That the same is true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true." The only allegations in the petition based upon information and belief are those in relation to alleged preference. After alleging positively that the appellant had committed an act of bankruptcy in that he did transfer, while insolvent, a portion of his property to one of his creditors with intent to prefer such creditor over his other creditors, the specification of the transfer is made as follows: "Your petitioners are informed and believe, and on such information and belief allege, that on or about the 2d day of January, 1929, at the city and county of San Francisco, State of California, said E. Massagli did pay over unto Anthony Devoto the sum of One Thousand (1,000) Dollars. Your petitioners allege, on information and belief, that said Anthony Devoto was, then and there, an unsecured creditor of said E. Massagli, and that said moneys so transferred were, then and there, the property of said E. Massagli, and part of his estate, subject to the satisfaction of the claims of his general unsecured creditors, including your petitioners herein. At the time of said transfer said Massagli was indebted to a large number of unsecured creditors, including your petitioner herein, and said transfer was made with intent to prefer said Anthony Devoto over the other unsecured creditors, including your petitioners, and the effect of such transfer is to give to said Anthony Devoto a greater percentage of his indebtedness than the said petitioning creditors."

The claim is made on the appeal that this form of verification departs from that provided by official form No. 3 prescribed by the Supreme Court for verifying a creditor's petition. See orders and forms, 172 U. S. 653, 723; 89 Fed. xiv, form No. 1.

The appellant relies upon the decision by this court in Sabin v. Blake-McFall Co., 223 F. 501, 506. The verification in that case stated, "The facts contained in the...