Opinion
No. 5435.
August 2, 1934.
Appeal from the District Court of the United States for the District of Delaware.
Petition in bankruptcy by William C. Ross, Archibald A. Rogers, and Mary J. Borhek against European Mortgage Investment Corporation, in which Kenneth M. Spence, receiver, etc., and others intervene, and move to dismiss the petition. From an order dismissing the petition, the petitioning creditors appeal.
Affirmed.
Arthur G. Logan, of Wilmington, Del. (Robt. A.B. Cook, of Boston, Mass., and James R. Morford, of Wilmington, Del., of counsel), for appellants.
Biggs, Biggs, Lynch, of Wilmington, Del., and Cook, Nathan Lehman, of New York City (John Biggs, Jr., of Wilmington, Del., Edgar M. Souza, of New York City, and Thomas Epstein, of Brooklyn, N.Y., of counsel), for interveners-appellees.
Richards, Layton Finger, of Wilmington, Del., for appellees Shepardson and others.
Before DAVIS, Circuit Judge, and JOHNSON and FORMAN, District Judges.
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 § 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.