Campbell v. Corporation of America

Full title: CAMPBELL v. CORPORATION OF AMERICA

Court: Circuit Court of Appeals, Ninth Circuit

Date published: May 4, 1937

90 F.2d 102 (9th Cir. 1937)

Opinion

No. 8151.

May 4, 1937.

Appeal from the District Court of the United States for the Southern District of California, Northern Division; George Cosgrave, Judge.

Willcox Judson, of Los Angeles, Cal. (Oregon Smith, of Los Angeles, Cal., of counsel), for appellant.

Louis Ferrari, Edmund Nelson and Hugo A. Steinmeyer, all of Los Angeles, Cal., for appellee.

Before DENMAN and MATHEWS, Circuit Judges, and NETERER, District Judge.

MATHEWS, Circuit Judge.

On April 11, 1935, appellant filed her petition praying for relief under subsections (a) to (r), inclusive, of section 75 of the Bankruptcy Act.¹ On September 26, 1935, she filed her amended petition, asking to be adjudged a bankrupt, pursuant to subsection (s) of section 75, as amended by the Frazier-Lemke Act of August 28, 1935, c. 792, § 6, 49 Stat. 943 (11 U.S.C.A. § 203(s). The District Court made such order of adjudication on September 28, 1935. On January 21, 1936, appellee, a creditor of appellant, moved to dismiss the proceeding, on the ground that subsection (s) of section 75, as amended by the Frazier-Lemke Act of August 28, 1935, was unconstitutional. On that ground alone the District Court on February 18, 1936, granted appellee's motion and dismissed the proceeding. This appeal followed.

1 Section 75, comprising subsections (a) to (r), inclusive, was added to the Bankruptcy Act by the Act of March 3, 1933, c. 204, § 1, 47 Stat. 1470-1473. Subsections (a) and (b) were amended by the Act of June 7, 1934, c. 424, §§ 8 and 9, 48 Stat. 925. Subsection (s) was added to section 75 by the Frazier-Lemke Act of June 28, 1934, c. 869, 48 Stat. 1289-1291. Subsection (r) was amended by the Act of May 15, 1935, c. 114, § 3, 49 Stat. 246. Subsections (b), (g), (k), (n), (p), and (s) were amended by the Frazier-Lemke Act of August 28, 1935, c. 792, §§ 1-6, 49 Stat. 942-945 (11 U.S.C.A. § 203).

Since this appeal was heard, the Supreme Court has, in Wright v. Vinton Branch of Mountain Trust Bank, 57 S.Ct. 556, 81 L.Ed. ___, decided March 29, 1937, held that subsection (s) of section 75, as amended by the Frazier-Lemke Act of August 28, 1935, is constitutional. Thus the ground on which the District Court dismissed this proceeding is now seen to be untenable. Compare Diller v. Shoemaker (C.C.A.9) 90 F.2d 98, this day decided.

Order reversed.