Pearce v. Coller

PER CURIAM. On June 27, 1934, the appellant filed a voluntary petition in bankruptcy and on the following day was adjudicated.a bank--rupt. The first meeting of creditors was held before the referee in bankruptcy on July 20, 1934, and Charles H. Pearce was elected trustee of the bankrupt estate. [238] Section 75 was added to the Bankruptcy Act on March 3, 1933 (47 Stat. 1470). On June 7, 1934, subsection (a) of section 75 was amended (11 U.S.C.A. § 203 (a) and by amendment of June 28, 1934 (48 Stat. 1289), subsection (s) was added to section 75 (11 U.S.C.A. § 203 (s) note). On August 3, 1934, the appellant filed a petition in the District Court praying for the benefits of subsection (s). Answers were filed by the trustee and J. E. Baker, holder of the first mortgage on appellant’s property on which execution had been issued before the adjudication in bankruptcy. They opposed the right of the appellant, under the facts of the case, to relief under section 75, as amended (11 U.S.C.A. § 203). Judge Dickinson filed two opinions in this case. In his first opinion, filed October 24, 1934, 8 F.Supp. 447, he held that since the appellant had elected to file a petition in bankruptcy rather than a debt- or’s petition under section 75 of the act and there had been elected a trustee in whom title to the property of the bankrupt estate vested, the bankrupt no longer owned the farm, and not owning the farm, he was not entitled to the benefits of section 75; that the only way in which he could in this action secure title to the property was to offer a compromise and have it accepted by the required number of creditors and approved by the court. This he has failed to do. Neither had he offered any plan of extension. On December 7, 1935, Judge Dickinson granted a reargument, 20 F.Supp. 245, but reaffirmed his previous conclusions. On the day of the reargument, counsel filed an affidavit of the appellant wherein he alleged that he had been “fraudulently ill-advised and wholly misled and induced into executing a voluntary petition in bankruptcy on June 27, 1934,” but Judge Dickinson evidently did not believe such to be the fáct and the affidavit as well as the circumstances surrounding the filing of the petition do not indicate that any fraud was practiced upon him. We do not find that Judge Dickinson erred, and for the reasons set forth in his opinions, the decrees are affirmed.