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IN RE KIRK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


October 3, 1961

In the Matter of Wallace E. KIRK, individually and trading as Wallace E. Kirk Company, Bankrupt

The opinion of the court was delivered by: WILLSON

In this involuntary bankruptcy proceeding against Wallace E. Kirk, individually and trading as Wallace E. Kirk Company, one creditor filed the involuntary petition seeking the adjudication. The creditor is Tice F. Ryan, Jr. whose claim for professional services amounts to $ 8,829.13. An answer was filed raising the issue that as Kirk had more than 12 creditors and as the petition failed to contain the names of three petitioning creditors, Section 59 of the Bankruptcy Act, 11 U.S.C.A. 95 was applicable and the proceeding should be dismissed. The case came on for trial non-jury. The evidence offered was by the petitioning creditor and the alleged bankrupt, Wallace E. Kirk and his bookkeeper. The evidence substantiated the claim of the defendant that his creditors amounted to some 19 in number, one of whom was his wife. The evidence established the 19 creditors as having bonified claims against the alleged bankrupt. But assuming, says the plaintiff, that 4 of the 19 creditors listed are judgment creditors not entitled to be counted under 11 U.S.C.A. 95, sub. e, then subtracting also 6 so-called small current claims, the creditors actually are less than 12, that is 9 in number. For computing the number of creditors under Section 95, sub. e, plaintiff says that the following creditors' claims should not be taken into account. "Bell Telephone Company of Pennsylvania $ 98.43 E. S. Dice Plumbing Contractor 53.06 Duquesne Light Company 21.00 Hawkinson Treads, Inc; 123.24 Patsy Pampena 206.00 Wiggins Esso Service 99.33"

19611003

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