matters then decided, but a voluntary dismissal has no binding effect in any other proceeding.12 § 637. Trials, and adjudications of bankruptcy. "If the bankrupt, or any of his creditors, shall appear within the time. limited and controvert the facts alleged in the petition, the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of jury, except in cases where a jury trial is given by this act, and makes the adjudication or dismiss the petition."1 "If, on the last day 12 Re Bean, C. C. A., 30 Fed. 405. § 637. 130 St. at L. 544, 551, $ 18. The issues cannot, against objection, be referred for trial. Re King, C. C. A., 179 Fed. 694. When the facts are complicated, they may be referred to the referee to take testimony and report his opinion upon the same. They may be referred by consent, and in that case the court has no power to set aside the report except in case of misconduct by the referee. Re Senoia Duck Mills, 193 Fed. 711. General Order VII: "Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bankruptcy committed by said debtor on different days, within four months prior to the filing of said petitions, and the debtor shall appear and show cause against an adjudication of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commission of the earliest act of bankruptcy; and in case the several acts of bankruptcy are alleged in the dif ferent petitions to have been committed on the same day, the court before which the same are pending may order them to be consolidated, and proceed to a hearing as upon one petition; and if an adjudication of bankruptcy be made upon either petition, or for the commission of a single act of bankruptcy, it shall not be necessary to proceed to a hearing upon the remaining petitions, unless proceedings be taken by the debtor for the purpose of causing such adjudication to be cancelled or vacated." Re McCracken & McLeod, 129 Fed. 621. The adjudication should not be delayed in order to afford the creditors an opportunity for a reorganization. Acme Harvester Co. V. Beekman Lumber Co., 222 U. S. 300, 309. "VI. Petitions in Different Districts. In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicile, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that 2 within which pleadings may be filed, none are filed by the bankrupt or any of his creditors, the judge shall on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition." "If the judge is absent from the district or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee." "Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district or the division of the district in which the petition is filed, at the time of the first alleged, if such earlier act is charged in either of the other petitions; and, in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions shall be filed in different districts by different members of the same partnership, the court in which the petition is first filed, having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the court so retaining jurisdiction shall, if satisfied that it is for the greatest convenience of parties in interest that another of said courts should proceed with the cases, order them to be transferred to that court." It has been held that where subsequent to the filing of a petition for involuntary bankruptcy a petition for voluntary bankruptcy of the same person is filed in another district where he is domiciled, an adjudication in the latter proceeding is proper. Re R. H. Pennington & Co., 228 Fed. 388; Re Vanoscope Co., C. C. A., 233 Fed. 53. But that where in a similar case the voluntary proceeding was not instituted in the district of the domicile the voluntary adjudication should be disregarded and an adjudication of involuntary bankruptcy made in the court where the bankrupt was domiciled and where the proceedings were first instituted. Continental Coal Corp. v. Roszelle Bros., C. C. A., 242 Fed. 243. 230 St. at L. 544, 551, § 18. 4 Ibid. The adjudication of voluntary bankruptcy may be made immediately upon the filing of the petition. Re Southern Arizona Smelting Co., C. C. A., 231 Fed. 87. The solvency or insolvency of a corporation petitioner in voluntary bankruptcy has been said to be immaterial. Re Hargadine-McKittrick Dry Goods Co., 239 Fed. 155; reversed on another point by C. C. A., 244 Fed. 719; Re United Grocery Co., 239 Fed. 1016. filing, the clerk shall forthwith refer the case to the referee."5 "A person against whom an involuntary petition has been filed shall be entitled to have a trial by jury, in respect to the question of his insolvency, except as herein otherwise provided, and any act of bankruptcy alleged in such petition to have been committed, upon filing a written application therefor at or before the time within which an answer may be filed. If such application is not filed within such time, a trial by jury shall be deemed to have been waived. If a jury is not in attendance upon the court, one may be especially summoned for the trial, or the case may be postponed, or it may be certified for trial to the Circuit Court sitting at the same place, or by consent of parties when sitting at any other place in the same district, if such Circuit Court has or is to have a jury first in attendance. The right to submit matters in controversy, or an alleged offense under this act, to a jury shall be determined and enjoyed, except as provided by this act, according to the United States laws now in force, or such as may be hereafter enacted in relation to trials by jury." When there was not jurisdictional defect upon the face of the record, it was held that a creditor could not oppose a voluntary petition." Intervening creditors who contest allegations in the petition are not entitled to a trial by jury. A ereditor by filing his claim in bankruptcy acqui 5 30 St. at L. 544, 551, § 18. 6 30 St. at L. 544, 551, § 19. See Carpenter v. Cudd, C. C. A., 174 Fed. 603. Where no demand is made nor answer filed until after the return day of the subpoena the right is waived. Bray v. Cobb, 91 Fed. 102; Re Neasmith, C. C. A., 147 Fed. 160. A voluntary appearance and answer admitting bankruptcy, when made by the respondent, is a waiver of process and authorizes an immediate adjudication. Re Western Inv. Co., 170 Fed. 677. 7 Re R. H. Pennington & Co., 228 Fed. 388; Re Herzikopf, C. C. A., 121 Fed. 544. Where the bankrupt admitted its inability to pay its debts and its willingness to be ad judged a bankrupt upon that ground, it was held that creditors could not object to the adjudication. Re Northampton Portland Cement Co., 179 Fed. 726. 8 Re Herzikopf, C. C. A., 121 Fed. 544. Where the opposing creditor lived more than one hundred miles from the place of trial it was held to be improper to impose as a condition for permission to him to defend that he should there attend for examination without payment of his expenses. Abbott v. Wauchula Mfg. & Timber Co., 229 Fed. 677. See Steiner, Lobman & Frank v. T. S. Faulk & Co., C. C. A., 222 Fed. 61. esces in the adjudication. It has been held that claimants whose claims are not provable have no standing to contest the adjudication,10 but the court will consider any objection to the jurisdiction which they may raise.11 Receivers appointed by another court and in possession of property can contest the proceedings.12 Stockholders cannot except under circumstances that would justify their intervention in a suit in equity.13 The only, issues on which a person against whom an involuntary petition in bankruptcy has been filed is entitled of right to a jury trial are with respect to his insolvency and the acts of bankruptcy with which he is charged, 14 including the questions, whether he has made an assignment for the benefit of his creditors,15 and in the case of a corporation whether a receiver has been appointed because of its insolvency.16 The question, who are the members of a copartnership is involved in that as to the firm's insolvency.17 If the question, whether an alleged bankrupt is a member of a bankrupt firm, affects his solvency, this must, if such a trial is duly demanded, be submitted to a jury; otherwise not.18 He is not entitled to a trial by jury upon the issue whether the petitioners are in fact creditors, so as to be 9 Re N. Y. Tunnel Co., C. C. A., 166 Fed. 284. 10 Re N. Y. Tunnel Co., C. C. A., 166 Fed. 284. 11 Ibid. 12 Re Hudson River El. Power Co., 173 Fed. 934. 13 Re Eureka Anthracite Coal Co., 197 Fed. 216. See §§ 258c, 630, 632. Where it was shown that the object of the proceedings was to avoid the effect of a judgment obtained by stockholders against the corporation and directors for the appointment of a receiver of the former's property and for an accounting by the latter; the stockholders were allowed to intervene and oppose the adjudication. Zeitinger v. Hargadine-McKittrick Dry Goods Co., C. C. A., 244 Fed. 719, reversing 239 Fed. 155. Contra Re United Grocery Co., 239 Fed. 1016. 14 Morss v. Franklin Coal Co., 125 Fed. 998. It is no defense that after the filing of the petition a suit had been brought by a creditor to foreclose a mortgage upon all the bankrupt's property, the value of which is less than the amount due the mortgagor. Vulcan Sheet Metal Co. v. North Platte Valley Irr. Co., C. C. A., 220 Fed. 106. 15 Day v. Beck & Gregg Hardware Co., C. C. A., 114 Fed. 834. 16 Blue Mountain Iron & Steel Co. v. Portner, C. C. A., 131 Fed. 57. 17 Re Neasmith, C. C. A., 147 Fed. 160; Buffalo Milling Co. v. Lewisburg Dairy Co., 159 Fed. 819. 18 Re Samuels & Lesser, 207 Fed. 195; Re Samuels, C. C. A., 215 Fed. 845. 20 entitled to maintain the proceedings, 19 nor whether they are estopped from prosecuting the proceedings; nor whether the alleged bankrupt belongs to a class subject to the act.21 The court has discretionary power to submit to a jury any other question in the case; 22 but the verdict thereupon is like that upon a feigned issue,23 merely advisory 24 Where the case is submitted upon the pleadings the allegations of the answer must be taken as true; and if a material allegation in the petition is denied, an adjudication of bankruptcy cannot be made in the absence of evidence in support of the petition.25 If the bankrupt fails to appear upon the return day, an adjudication may be made in his absence.26 "Whenever a person against whom a petition has been filed as hereinbefore provided under the second and third subdivisions of this section takes issue with and denies the allegation of his insolvency, it shall be his duty to appear in court on the hearing with his books, papers, and accounts, and submit to an examination, and give testimony as to all matters tending to establish solvency or insolvency, and in case of his failure to so attend and submit to examination the burden of proving his solvency shall rest upon him." 27 The burden of 19 Morss v. Franklin Coal Co., 125 Fed. 998. See Re San Miguel Gold Min. Co., 197 Fed. 126. 20 Simonson v. Sinsheimer, C. C. A., 100 Fed. 426. 21 Carpenter v. Cudd, C. C. A., 174 Fed. 603. 22 Re Rude, 101 Fed. 805; Oil Well Supply Co. v. Hall, C. C. A., 128 Fed. 875; Re Neasmith, C. C. A., 147 Fed. 160. 23 Supra, §§ 380-383. 24 Oil Well Supply Co. v. Hall, C. C. A., 128 Fed. 875; Re Neasmith, C. C. A., 147 Fed. 160. Where the bankrupt moved for leave to withdraw his demand for a jury and the withdrawal was denied; it was held that the verdict was merely advisory. Morrison v. Rieman, C. C. A., 249 Fed. 97. 25 Re Taylor, C. C. A., 102 Fed. 728; Re Cohn, 220 Fed. 956. 26 Young & Holland Co. V. Brande Bros., C. C. A., 162 Fed. 663. 27 30 St. at L. 544, 547, § 3. In determining presumptions and the burden of proof, the Federal courts are not bound by the State decisions. Young v. Lowry, C. C. A., 192 Fed. 825. The failure of the person charged with bankruptcy to appear for examination and produce his books creates a presumption of his insolvency when his creditor opposes the adjudication. Re Perlhefter, 177 Fed. 299. Re Electron Chemical Co., 208 Fed. 954. For a case where his failure to produce the papers relating to certain items on his schedules was held not to justify an instruction to disregard the value thereof when determining the issue of insolvency, see Cummins Grocer Co. v. Talley, C. C. A., 187 Fed. 507. |