Oil Well Supply Co. v. Hall

• Decision Date: 02 February 1904
• Docket Number: 504.
• Citation: 128 F. 875
• Parties: OIL WELL SUPPLY CO. v. HALL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

128 F. 875

OIL WELL SUPPLY CO. v. HALL et al.

No. 504.

United States Court of Appeals, Fourth Circuit.

February 2, 1904

This case comes up on appeal from the District Court of the United States for the Northern District of West Virginia, sitting in bankruptcy. The Oil Well Supply Company and the Jarecki Manufacturing Company, corporations of Pennsylvania, with the National Supply Company, a corporation of West Virginia filed in the District Court their petition in bankruptcy against James F. Hall and Curtis I. Hall, copartners as Hall Bros., charging them as being insolvent, and, within four months next preceding the date of the petition, with having committed an act of bankruptcy, to wit, concealing and removing, and permitting to be concealed and removed, part of their property, with intent to hinder, delay, and defraud their creditors. Upon consideration of the petition, his honor Judge Jackson, District Judge, issued his rule calling upon the alleged bankrupts to show cause before him at Parkersburg, W.Va., on 16th June, 1902, why the prayer which contains a notice to dismiss the petition for want of lawful process, and a demurrer, a plea, and an answer. The plea is that the petitioners have no provable debts against them. The demurrer and the answer set up the same or similar defenses as follows: 'First, no valid or legal process has been issued upon the petition or served upon the defendants second, the petition does not allege an act of bankruptcy on the part of the defendants, or either of them within four months next preceding the filing of the same; third, the petition does not alleged that the petitioners are, and each and every one of them, without lien or preference for their claim against the said defendants; fourth, the petition does not set forth any provable debt on the part of any or all of the said petitioners against the said defendants; fifth, the petition does not properly alleged the insolvency of the said defendants; sixth, the petition does not allege any fact from which the court may draw the legal inference that the defendants have, within four months next preceding the filing of the said petition, committed any act of bankruptcy. The defendants pray judgment of the court whether they should further defend this proceeding, and that they may be hence dismissed, with their costs in this behalf expended. That no valid or legal process has been issued or served upon the defendants. That the petition does not allege any act of bankruptcy on the part of the defendants, or either of them within four months next preceding the filing of the same. That the petition does not alleged that the petitioners are each and every one of them without lien or preference for their claims against the said defendants. That the petitioners are not each of them without lien or preference for their claim against the said defendants. That the petition does not set forth any provable debt due to either or all the said petitioners by the said defendants. That the petition does not properly allege the insolvency of the said defendants. That the petition does not allege any facts from which the court may draw the legal inference that the defendants, within four months next preceding the filing of the said petition did, both they, or either of them, have committed the act of bankruptcy set forth in said petition, or that they are insolvent, and aver that they should not be adjudged bankrupts for any cause set forth in said petition, and this they pray may be inquired of by the court.'

The question thus made came before the District Court. The motion to dismiss the petition was refused, but the demurrer was sustained, and leave was given to the petitioning creditors to amend their petition. Leave was given to file the plea and answer, subject to the right to file the demurrer. The order closed with these words, 'The right of trial by jury is waived by said alleged bankrupts,' and the cause was continued. The creditors amended their petition pursuant to the leave granted. Thereupon the respondents demurred to it on several grounds. The demurrer came on to be heard on 23d August, 1902, and was overruled on all points but one, and that was allegation of new matter. Respondents then asked leave to amend their answer theretofore filed. This was allowed, and the following reference ordered: 'And all questions and matters properly arising under the pleadings herein are referred to George W. Johnton, one of the referees of said cause in bankruptcy, for the purpose of taking such testimony as the petitioners herein may adduce in support of the issues raised by the pleadings herein, and such testimony, also, as may be adduced by the alleged bankrupts in opposition thereto, and to report his findings herein to this court, along with the testimony taken hereunder, as soon as practicable; but, before the said referee shall proceed to execute this reference, he shall give ten days' notice to all parties of record, or their attorneys, of the time and place of such hearing.'

The parties went before the referee. Thereupon respondents filed their amended answer, in the words following: 'The alleged bankrupts, the firm of Hall Bros., composed of James F. Hall and C. I. Hall, trading as such firm, and James F Hall and Curtis I. Hall, each of them individually, are unable, first, that they as a firm, and they-- each of them-- individually, are unable to pay and discharge the debts now owing by the said firm, and by them and each of them individually, and are willing to be adjudged bankrupts; second, that their inability to pay their said debts results from the fact that they were prevented from the completion of certain contracts under which they were operating, and certain other contracts under which they were about to begin operations, by the institution of certain suits and the issuance and levy of certain attachments in the circuit court of Tyler county, West Virginia, on or about the 7th day of March, 1902. Therefore the said firm of Hall Bros., James F. Hall and Curtis I. Hall, and each of them individually, pray this honorable court that they, as such firm, and each of them as individuals, may be by this court adjudged bankrupts, and discharged from the payment of all debts properly dischargeable in bankruptcy; that the order adjudging such bankruptcy shall give the respondents a period of ten days in which to prepare and file a statement of their joint and several properties, assets, debts, and liabilities; that by the said order a trustee be appointed to take charge of and administer their joint and several estates according to law; that said order shall...