Opinion
No. 3158.
July 6, 1936.
Appeal from the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.
Proceeding in bankruptcy by Joseph I. Shapiro, Incorporated, creditor, against Allman Olins, Incorporated, alleged bankrupt. From an order dismissing the creditor's petition, the creditor appeals.
Order vacated and case remanded.
Harold Horvitz and Guterman Guterman, all of Boston, Mass., for appellant.
Joseph B. Jacobs, of Boston, Mass., for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
This petition for leave to appeal is granted. So far as we can ascertain after hearing the parties it is certain that the defendant, Allman Olins, Inc., was not served with process, and it is claimed that it did not voluntarily appear. No pleadings were filed, either answer, demurrer, or motion to dismiss, and no evidence was taken or facts found. All that appears to have taken place in the District Court leading up to the order of May 11, 1936, dismissing the petition of the appellant, was a mere discussion between counsel and court.
Under these circumstances we think that the order of May 11, 1936, should be vacated; that the case should be remanded to the District Court, with directions to cause the defendant to appear and plead to the plaintiff's petition; that, the cause being at issue, the parties be given a hearing at which they be afforded an opportunity to introduce evidence, if desired; and, this being done, that findings of fact and rulings of law be made so that the parties may preserve their rights, if any, in the usual way.
The petitioning creditor should be allowed to amend the petition if desired.
The order of the District Court of May 11, 1936, is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.