Opinion
No. 6704.
July 6, 1938. Rehearing Denied August 30, 1938.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
The C.I.T. Corporation filed a claim against Leslie R. Himes, trustee in bankruptcy of J.S. Keck and Leslie C. Spindler, individually and as partners trading as Keck's New Garage. From an order sustaining the referee's denial of the claim as filed and his refusal to allow an amendment of the proof of claim, 23 F. Supp. 121, the C.I.T. Corporation appeals.
Order affirmed.
Leonard M.S. Morris, Louis Caplan, and Sachs Caplan, all of Pittsburgh, Pa., for appellant.
W.P. Geary and A.A. Geary, both of Clarion, Pa., for appellee.
Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.
The facts of this bankruptcy case are detailed in the opinion of the court below, 23 F. Supp. 121.
After consideration, we find ourselves in accord therewith.
The gist of the case is summed up by the trial judge as follows:
"The claim as filed makes no mention of any such instrument. Section 57b of the Bankruptcy Act, 11 U.S.C.A. § 93(b), provides: `Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim.' To effectuate any amendment of claim the guaranty would have to be filed. An effective amendment would in reality be a new claim, invalid under section 57n [11 U.S.C.A. § 93(n)]."
So regarding, the order of the court is affirmed.
DICKINSON, District Judge, concurs in the result.