Sabin v. Blake-McFall Co.
| Decision Date | 10 May 1915 |
| Docket Number | 2541. |
| Citation | 223 F. 501 |
| Parties | SABIN v. BLAKE-McFALL CO. et al. In re EQUAL RIGHTS CO., Inc. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sidney Teiser, of Portland, Or., for petitioner.
Seitz & Clark and Manning, Slater & Leonard, all of Portland, Or for respondents.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
On September 8, 1914, an involuntary petition in bankruptcy was filed by certain alleged creditors (the respondents herein) of the Equal Rights Company, Incorporated, a corporation wherein they prayed that such corporation be adjudged a bankrupt. Thereafter R. L. Sabin, the petitioner herein, having asked for and obtained leave to intervene as a creditor in the bankruptcy proceedings, filed a motion to dismiss the petition, which motion was sustained. On September 26, 1914, by permission of the court below, the petitioning creditors filed an amended petition, and, the petitioner herein having interposed a motion to dismiss the petition as amended, the motion was sustained. Thereafter, and on the 26th day of October, 1914, a second amended petition was filed by the petitioning creditors, and it also, upon motion of the petitioner herein, was dismissed on November 16, 1914; the court in its order of dismissal granting the petitioning creditors five days within which to file a third amended petition. On November 23, 1914 (two days after the expiration of the time thus granted), the petitioning creditors moved the court for further time within which to file the third amended petition (the court at that time being occupied by a judge other than the one who had granted the former orders in the proceeding); and the petitioning creditors, pursuant to such request, were granted to and including the 23d day of November, 1914, within which to file the third amended petition. The third amended petition, denominated by the petitioning creditors as 'second amended petition,' was, however, not filed until November 25, 1914, two days after the expiration of the time as last extended by the court. On December 3, 1914, the petitioner herein filed a motion to dismiss the third amended petition of the petitioning creditors, which motion was denied. The present petition for revision has been filed for the purpose of having this court review, in matters of law, the order of the court below denying the petitioner's motion to dismiss the third amended petition.
The grounds upon which the petition for review are based are four:
First. That the third amended petition was not filed within the time allowed by the order permitting the amendment.
The whole matter of permitting or refusing amendments in bankruptcy proceedings in the federal courts rests entirely in the sound judicial discretion of the lower court, and, in accordance with the general rule, its decision will not be interfered with by a reviewing court, unless abuse of discretion has been shown. Pittsburgh Laundry Supply Co. v. Imperial Laundry Co., 154 F. 662, 83 C.C.A. 486; Loveland on Bankruptcy, vol. 1, p. 421. In the present case we cannot say that no good and sufficient reason was presented to the court below for permitting the filing of the amendment after the expiration of the time fixed for that purpose. It is sufficient that no abuse of discretion has been shown.
Second. That the petition, as amended, does not show that the alleged bankrupt is amenable to the provisions of the Bankruptcy Act.
It is alleged in the amended petition that the Equal Rights Company, Incorporated, is a corporation duly organized and existing under and by virtue of the laws of the state of Oregon, with its principal place of business in the city of St. Johns, county of Multnomah, state of Oregon; that the corporation, for the greater part of six months preceding the date of the filing of the original petition herein, has had its principal place of business in the city of St. Johns, county of Multnomah, state of Oregon, and as such was engaged in the general retail merchandise business; that the company is insolvent and is neither a wage-earner nor a person engaged in farming or tillage of the soil, nor a municipal, railroad, insurance, or banking corporation. The objection to the petition is that it does not allege that the company is a 'moneyed, business, or commercial corporation,' in the language of section 4b of the Bankruptcy Act of 1898, as amended by the act of June 25, 1910. That section provides that:
'Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated company, and any moneyed, business, or commercial corporation, except a municipal, railroad, insurance, or banking corporation, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt.'
The respondents in their petition having negatived the exceptions set forth in the above section, and having alleged that the company was engaged in the 'general retail merchandise business,' the question is: Was it necessary that they also allege that the corporation sought to be adjudged bankrupt was a 'moneyed, business, or commercial' corporation? Counsel for the petitioner refer us to no decision, and our own research reveals none, in which it has been held that the character of the business of an alleged bankrupt corporation must be set forth in the phraseology of the bankruptcy act. While such would undoubtedly be the better practice, we think that any language, the fair and reasonable import of which is that the alleged bankrupt is a moneyed, or a business, or a commercial corporation, is sufficient. The allegation in the present petition that the alleged bankrupt is engaged in the 'general retail merchandise business' undoubtedly brings the corporation within the class of 'business' corporations which under the act may be adjudged involuntary bankrupts. To place upon the language used any other construction would be hypercritical.
Third. That the nature of the claim of ...
To continue reading
Request your trial
-
McRaney v. Riley
... ... of an act of Congress, have the force of law. In re ... Gerber (C. C. A.), 186 F. 693; Sabin v. Blake, ... 223 F. 501; Falk v. Stiner (C. C. A.), 165 F. 861; ... Mahoney v. Ward (D. C.), 100 F. 278, authorities on ... this question ... ...
-
Kroell v. New York Ambassador
...discretion to reopen an order dismissing a petition for reorganization even after the time for appeal had expired. Sabin v. Blake-McFall Co. et al., 9 Cir., 223 F. 501, held an amendment allowable after dismissal of the petition; and White v. Bradley Timber Co., D.C.S.D.Ala., 116 F. 768, su......
-
In re Berkshire Hardware Co.
...& Co., 190 U.S. 552, 23 S.Ct. 778, 47 L.Ed. 1179; Commonwealth of Massachusetts v. Meehan, 1 Cir., 67 F. 2d 638. See Sabin v. Blake-McFall Co., 9 Cir., 223 F. 501, 35 A.B.R. The Division of Unemployment Compensation may within fifteen days file an amended proof by the Director acting in beh......
-
In re Royal Circle of Friends Bldg. Corporation, 9154
...6 Cir., 96 F. 948; Manke v. United States, 9 Cir., 38 F.2d 624; Rosaly v. Gonzalez, 1 Cir., 106 F.2d 169. 8 See Sabin v. Blake-McFall Co., 9 Cir., 223 F. 501. ...