Opinion
No. 8177.
January 15, 1940.
Appeal from the District Court of the United States for the Eastern District of Michigan, Southern Division; Ernest A. O'Brien, Judge.
Involuntary bankruptcy proceedings by Fairmont Creamery Company, M. Silberman Co., and Louis Gunsberg, d.b.a. Chicago Corned Beef Company against the Alaska Smoked Fish Company, a Michigan corporation, alleged bankrupt. From an order of adjudication, the defendant appeals.
Order affirmed.
Fred B. Collier, of Detroit, Mich. (Fred B. Collier and Ken Corbitt, both of Detroit, Mich., on the brief), for appellant.
Irwin I. Cohn, of Detroit, Mich. (Abe A. Schmier and Irwin I. Cohn, both of Detroit, Mich., on the brief), for appellees.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
An involuntary petition in bankruptcy was filed against appellant on April 15, 1938, and on the same day a subpoena issued commanding appellant to appear and answer on April 25, 1938. The subpoena was served on April 22, 1938. The petition was not answered and it appears that an order of adjudication, signed by the Judge, was entered on the minutes on May 2, 1938.
The briefs and oral argument presented the case as if it involved two appeals, — (1) from the order of adjudication, on May 2; and (2) from an order entered May 23, 1938, denying appellant's motion to vacate the order of adjudication.
The record discloses that the appeal was from the order of adjudication only. This appeal was properly allowed by the District Judge. There is no merit in the contention that it should have been allowed by this court.
Appellant insists that the adjudication was invalid because the subpoena contained no underwritten memorandum as specified in Equity Rule 12, 28 U.S.C.A. following section 723. The obstacle to this contention is that on April 18, 1938, there was a general appearance of attorneys for appellant; and on the same date appellant, through its attorneys, waived the filing of petitioning creditors' bond and upon the withdrawal of these attorneys on May 6, there was a general appearance of substituted attorneys for appellant. It is elementary that the general appearance of a defendant by attorneys cures all defects in process.
A further contention is that the order of adjudication on May 2 was not actually made and signed by the Judge, as it purports to be, but by the Clerk of the court acting under a standing order of the court. We need not consider whether this contention has merit, because, even so, there is an entire lack of evidence to support it.
The matter relied upon is a certified copy of what upon its face purports to be the testimony of one Smith, Deputy Clerk of the District Court, in a criminal case styled No. 24,943, United States v. Albert E. Miller et al. It was not introduced as evidence in the present case but appellant seeks to bring it to our attention by printing it as an Exhibit to its brief. It, of course, may not be considered.
The order appealed from is affirmed.