Perry v. Baumann, 9778.
| Decision Date | 04 September 1941 |
| Docket Number | No. 9778.,9778. |
| Parties | PERRY v. BAUMANN et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arthur W. Green and Messrs. Grainger & Hunt, all of Los Angeles, Cal., for appellant.
Thomas F. McCue, of Los Angeles, Cal., for appellee Anna Baumann.
C. H. Scharnikow, of Los Angeles, Cal., for appellee Lane Mortgage Co.
William J. Clark, of Los Angeles, Cal., for appellee Maud E. Lane.
Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.
This appeal is from an order dismissing a proceeding by appellant, William H. Perry, under § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203.
Appellant's petition alleged that he was primarily bona fide personally engaged in producing products of the soil and derived the principal part of his income from such operations. Thus, in effect, the petition alleged that appellant was a farmer within the meaning of § 75.1 Appellees, Anna Baumann, Maud E. Lane and Lane Mortgage Company, as trustee for George A. Hendricks and others, creditors of appellant, filed motions to dismiss the proceeding. The motions of Anna Baumann and Lane Mortgage Company were on the ground that appellant was not primarily bona fide personally engaged in producing products of the soil, did not derive the principal part of his income from such operations and was not a farmer within the meaning of § 75. Maud E. Lane's motion was on the ground just mentioned and two others, namely, that the proceeding was not instituted in good faith, and that it was impossible for appellant to rehabilitate himself or to offer his creditors a fair, just or equitable composition.
Thus each of the motions raised issues of fact. The issues were tried by the court without a jury. Evidence was received2 and, upon consideration thereof, the following order was entered: "Motion to dismiss proceedings granted." The order did not state, nor does the record show, which of the several motions to dismiss was granted, nor on what ground or grounds dismissal was ordered. The court made no findings, stated no conclusions.
Order 37 of the General Orders in Bankruptcy, 11 U.S.C.A. following section 53, provides: "In proceedings under the Bankruptcy Act the Rules of Civil Procedure for the District Courts of the United States (28 U.S.C.A. following section 723c) shall, in so far as they are not inconsistent with the Act or with these general orders, be followed as nearly as may be." Rule 52(a) of the Rules of Civil Procedure provides: "In all actions...
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