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Ross v. Mortg.

CIRCUIT COURT OF APPEALS, THIRD CIRCUIT


August 2, 1934

ROSS ET AL.
v.
EUROPEAN MORTG. & INV. CORPORATION (SPENCE ET AL. INTERVENERS)

Appeal from the District Court of the United States for the District of Delaware.

Before DAVIS, Circuit Judge, and JOHNSON and FORMAN, District Judges.

Per Curiam.

Three creditors, holding bonds of the alleged bankrupt of a face value of $3,000, filed a petition in bankruptcy against the European Mortgage and Investment Company, averring acts of bankruptcy. The alleged bankrupt, its equity receivers, and a protective committee and a creditor, holding a total of over $4,000,000 of the obligations of the alleged bankrupt, have intervened and filed answers and moved to dismiss the petition.

The petition failed to set out the jurisdictional requirements of section 4b of the Bankruptcy Act, as amended (11 USCA ยง 22 (b), in that it failed to aver that the alleged bankrupt was not "a municipal railroad, insurance, or banking corporation." The defect is curable by amendment, but the District Court properly refused to allow the amendment on the ground that no benefit could be obtained thereby. Woolford v. Diamond State Steel Company (D.C.) 138 F. 582; In re Lippincott & Co. (D.C.) 3 F. Supp. 1019. The matter was determined in the sound discretion of the court. Armstrong v. Fernandez, 208 U.S. 324, 28 S. Ct. 419, 52 L. Ed. 514; In re Frank, 239 F. 709 (C.C.A. 3).

The order dismissing the petition is affirmed.

19340802

© 1998 VersusLaw Inc.



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