Meek v. Centre County Banking Co.
| Decision Date | 20 August 1923 |
| Docket Number | 2946,2945,2971. |
| Citation | 292 F. 116 |
| Parties | MEEK v. CENTRE COUNTY BANKING CO. et al. DALE v. SAME. BREEZE v. SAME. |
| Court | U.S. Court of Appeals — Third Circuit |
Mortimer C. Rhone, of Williamsport, Pa., R. L. Bigelow, of Hazleton Pa., and Harry Keller and Ellis L. Orvis, both of Bellefonte Pa., for petitioners.
S. D Gettig and N. B. Spangler, both of Bellefonte, Pa., for respondents.
Before BUFFINGTON and DAVIS, Circuit Judges, and McKEEHAN, District judge.
All three of these cases were argued together. The same questions arise in each, and they will be disposed of in one opinion.
John M Shugert, George R. Meek, Mary C. Harris, Florence F. Dale, Andrew Breeze, and Lavina Katherine Harris conducted a banking business at Bellefonte, Pa., under the firm name of Centre County Banking Company. Lavina Katherine Harris died, and while her estate was being administered in the orphans' court of Centre county, John M. Shugert filed a petition in his own name and in the name of the partnership, in which he alleged that he individually, the partnership, and his partners were all insolvent, and prayed that he, the partnership, and the partners, individually be adjudged bankrupts. After the service of subpoenas on all the partners personally except Andrew Breeze, who was served by publication, the appellants filed petitions praying the court to dismiss Shugert's petition in bankruptcy for two reasons: First, Shugert was without authority, without consent of his partners to have the partnership and the individual members thereof adjudicated bankrupts; and, second, the partnership cannot be adjudicated a bankrupt because the estate of Lavina Katherine Harris, constituting part of the partnership estate, was being administered in the orphans' court of Centre county. Authority of one partner to institute proceedings in bankruptcy involving his partners individually and the partnership was conferred by section 36 of the Act of 1867 (14 Stat. 534), but this authority, they contend, was omitted from the Act of 1898 (Comp. St. Secs. 9585, 9656), and this omission shows that Congress intended to repeal the authority granted in that section. But sections 5a and 5c of the Act of 1898 (Comp. St. Sec. 9589) provides that--
'(a) A partnership, during the continuation of the partnership business, or after its dissolution and before the final settlement thereof, may be adjudged a bankrupt. * * *
'(c) The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property.'
General Order No. 8 (89 F. vi, 32 C.C.A. vi) provides that--
'Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against.'
Appellants contend that the above section and general order refer to involuntary and not to voluntary petitions in bankruptcy. General Order No. 8 was promulgated by the Supreme Court pursuant to section 30 of the Act of 1898 (Comp. St. Sec. 9614) and had the force of law. This section provides that--
'All necessary rules, forms, and orders as to procedure and for carrying this act into force and effect shall be prescribed, and may be amended from time to time, by the Supreme Court of the United States.'
So far as the language of section 5 provides, the adjudication against a partnership may be based on either a voluntary or involuntary petition. The appellants admit that an adjudication may be based on an involuntary petition, but not on a voluntary petition filed by one of the partners. Under the authority of section 36 of the Act of 1867, a voluntary petition might be filed by 'any one' of the partners or by 'any creditor' of the partnership. There is nothing in the language of section 5 of the Act of 1898 restricting adjudications to involuntary petitions. It simply provides that 'a partnership * * * may be adjudged a bankrupt. ' Did not Congress in section 5 of the earlier act? tersely include everything contained in section 36 of the earlier act? In the absence of any provision in the Act of 1898 to the contrary, we think the true interpretation requires us to hold that it did. If the Act of 1898 had provided that 'a partnership * * * may be adjudged a bankrupt' on the petition of 'any creditor,' this would have indicated that Congress intended to deny to an individual partner authority to file a petition against the partnership. In that event, the argument of counsel that expressio unius est exclusio...
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Meek v. Beezer
...30, 1922, against the Center County Banking Company, on which it was adjudged a bankrupt. On appeal to this court the decree was affirmed. 292 F. 116. The Supreme Court, however, reversed this court for want of proper parties. 264 U. S. 499, 44 S. Ct. 366, 68 L. Ed. After the case had been ......
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Meek v. Centre County Banking Co Dale v. Same Breeze v. Same
...denying these motions were entered by the District Court; and these, on petitions to revise, were affirmed by the Circuit Court of Appeals. 292 F. 116. Writs of certiorari were then granted. 263 U. S. 696, 44 S. Ct. 39, 68 L. Ed. Thereafter, but before the hearing in this court, Shugert die......
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In re McCloskey
...of the trial court, but have been referred to the review of the judgment reached and the opinion of the Circuit Court of Appeals therein in 292 F. 116. From this we learn that separate motions had been made by George R. Meek and others to dismiss a petition in bankruptcy which had been "fil......
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In re Lomont
...and the case of In re Stein & Co., supra, as well as the decisions, In re Adams & Co. (D. C.) 283 F. 431, and Meek v. Centre County Banking Co. et al. (C. C. A.) 292 F. 116, it seems clear that it is the plain duty of the court to continue the bankruptcy proceeding, and for this reason the ......