voluntary petition, and then such action should be taken as the hearing shows to be for the best interest of the estate.75 m. Of meetings generally. In addition to the requirements as to notice of the different steps already mentioned, subsection a also requires that the parties in interest shall have the statutory notice of "all meetings of creditors." This omnibus phrase seems to include every gathering to pass on matters that may be submitted to creditors. It does not, therefore, include meetings where the referee or judge acts independently of them. A first meeting or a special meeting to fill a vacancy in the office of trustee must, therefore, be regularly noticed, not so of a special meeting called under General Order XXI (6). 76 75. In re Dwyer (D. C., N. Dak.), 7 Am. B. R. 432, 112 Fed. 777; International Silver Co. V. New York Jewelry Co. (C. C. A., 6th Cir.), 37 Am. B. R. 91, 233 Fed. 945, holding that where an involuntary proceeding is pending and a voluntary petition is subsequently filed notice thereof should be given to the petitioning creditors, and opportunity be thus afforded to determine the course most likely to conserve the interests of the estate. Matter of Continental Coal Corp. (C. C. A., 6th Cir.), 38 Am. B. R. 168, 238 Fed. 113. Want of notice of voluntary petition. -In the case of In re New Chattanooga Hardware Co. (D. C., Tenn.), 27 Am. B. R. 77, 90, 190 Fed. 241, the court, in commenting on the Dwyer case, said: "I am clearly of opinion that the want of formal notice to the petitioning creditors of the application for an adjudication in the voluntary case, which it is stated in the Dwyer case should, as a matter of proper practice, be given, is not now a valid objection to an adjudication in the voluntary proceedings, as it appears that the petitioning creditors in both the involuntary cases have in fact had actual notice of the application for an adjudication under the voluntary petition, and have appeared in opposition thereto, so that the failure to give them formal notice is entirely immaterial." 76. Notice of special meeting.- In the case of In re Stoever (D. C., Pa.), 5 Am. B. R. 250, 105 Fed. 355, the court said: "I am of opinion that the notice in question, namely, of a special meeting called upon the petition of a creditor, under paragraph 6 of General Order 21, to have a re-examination of certain claims, should have been sent out by the referee, and that this duty did not rest upon the petitioner. Paragraph 6 provides that 'due notice [of such meeting] shall be given by mail addressed to the creditor whose claim is to be re-examined, but does not specify by whom the notice shall be given.' I think, however, that this omission is supplied by the Bankruptcy Act in clause 'c' of section 58, which declares that all notices shall be given by the referee unless otherwise ordered by the judge.' It was suggested that this clause should be confined to the eight notices enumerated in clause 'a' of the same section, but I am unable to assent to the correctness of this construction. As the language is 'all notices,' and there is no other qualification than this unless otherwise ordered by the judge,' I can see no reason to limit the meaning of the word 'all.'" Closing estate. The creditors must have ten days' notice of a final meeting III. NOTICE BY PUBLICATION Subsection b provides that only the notice of the first meeting must be published. It should be so published at least once, and the last publication must be "at least one week prior to the date fixed for the meeting." Publication must be in the official newspaper." Whether other notices shall be published depends either on the standing rules of the district or the order of the court in each case. It is customary on discharge applications and sales. Failure to publish, while not going to the jurisdiction, is probably so far an irregularity as to render void any meeting for which publication is necessary. Proof of publication should be made by affidavit of the proprietor or foreman of the newspaper." IV. BY WHOM NOTICES ARE GIVEN 78 Notices must be given by the referee, "unless otherwise ordered by the judge." If by the former, the official business envelope can be used; perhaps if, under the order of the judge, actually mailed by another. Notices are sometimes printed on postal cards, sometimes on slips and inclosed in envelopes. The law imposes this duty upon. the referee, and it will be presumed that he has properly performed it.80 If the referee mails the notice he is entitled to indemnity for his actual expense in so doing, but, especially since § 72 was added by the amendatory act, to no fee. No compensation thus being possible, the judge has often in the past "otherwise ordered," i. e., he has, by standing rule, directed such notices to be mailed by the bank of creditors before closing the estate. Matter of Levy (D. C., Pa.), 44 Am. B. R. 248, 261 Fed. 432. 77. Bankr. Act, § 28. Notice of trustee's sale; sufficiency of publication.- The act of March 3, 1893, (27 Stat. 751), requiring publication once a week for at least four weeks before the sale of real property, which requirement has been construed to mean twenty-eight days at least, does not bind the Federal courts in their administration of the bankruptcy act; and, in the absence of reason to believe that publication three days earlier would have made a real difference for any purpose, the publication of notice of sale of the bankrupt's real estate once a week during each of the four weeks preceding the time set for the sale, the first publication, however, being but twenty-five days before, is sufficient. In re National Mining Exploration Co. (D. C., Mass.), 27 Am. B. R. 92, 193 Fed. 232; In re La France Copper Co. (D. C., Mont.), 30 Am. B. R. 381, 205 Fed. 207. Contra: In re Britannia Mining Co. (D. C., Wis.), 28 Am. B. R. 651, 197 Fed. 459. 78. In re Hall, Fed. Cas. 5,922. See also In re Bellamy, Fed. Cas. 1,260; Wiley v. Pavey, 61 Ind. 457. 79. For form see 1 N. B. N. 118. See also Forms in Bankruptcy, No. 159, Vol. III, post. 80. Claflin v. Wolff (N. J. Ct. of rupt or his attorney, and this practice will perhaps become general. In that case, proof must be made by affidavit and filed with the referee. If the referee mails the notices, a certificate in his recordbook that he mailed notices to all creditors at the addresses given in the schedules, or as afterward filed with the papers in the case, is enough.81 Errors & App.), 38 Am. B. R. 852, 96 81. This practice is outlined in 1 N. B. N. 112, 113, 118. SECTION FIFTY-NINE WHO MAY FILE AND DISMISS PETITIONS § 59. Who May File and Dismiss Petitions.-a Any qualified person may file a petition to be adjudged a voluntary bankrupt. b Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt. c Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt. d If it be averred in the petition that the creditors of the bankrupt are less than twelve in number, and less than three creditors have joined as petitioners therein, and the answer avers the existence of a larger number of creditors, there shall be filed with the answer a list under oath of all the creditors, with their addresses, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition and shall delay the hearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed. e In computing the number of creditors of a bankrupt for the purpose of determining how many creditors must join in the petition, such creditors as were employed by him at the time of the filing of the petition or are related to him by consanguinity or affinity within the third degree, as determined by the common law, and have not joined in the petition, shall not be counted. f Creditors other than original petitioners may at any time enter their appearance and join in the petition, or file an answer and be heard in opposition to the prayer of the petition. g A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors, and to that end the court shall, before entertaining an application for dismissal, require the bankrupt to file a list, under oath, of all his creditors, with their addresses, and shall cause notice to be sent to all such creditors of the pendency of such application, and shall delay the hearing thereon for a reasonable time to allow all creditors and parties in interest opportunity to be heard.* Analogous provisions: In U. S.: As to who may file voluntary petitions, Act of 1867, § 11, R. S., § 5044; Act of 1841, § 7; As to who may file involuntary petitions, Act of 1867, § 39, R. S., § 5021; Act of 1841, § 1; Act of 1800, §§ 1, 2; As to intervention by other creditors, Act of 1867, R. S., § 5026. In Eng. Act of 1883, §§ 4, 5, 6, 7; Act of 1914, §§ 3-6. General Rules 145-154. In Can.: Act of 1919, §§ 4, 9; General Rules 74-76. Cross-references: To the law: Definition of creditor, § 1 (9); of petition, § 1 (20); of secured creditor, § 1 (23). Jurisdiction to adjudge persons to be bankrupts, § 2 (1). Acts of bankruptcy; against whom petition may be filed; when bond must accompany petition, § 3. Who may become bankrupts, § 4. Adjudication of partnership, § 5. Process, pleadings and adjudications, § 18; verification, § 18-c; determina tion of issues raised by pleadings, § 18-d. Transfer of cases where petitions are filed in different courts, § 32. Jurisdiction of referee to consider petitions, § 38-a (1). Notice of proposed dismissal of proceedings, § 58-a (8). Debts which may be proved, § 63. To the General Orders: Process to issue out of court, III. Frame or form of petition, V. Petitions in different districts; amendment of earlier petition; jurisdic tion of district first receiving petition, VI. Priority of petitions, how determined, VII. Creditor to file schedule of creditors, IX. * Amendment of 1910 in italic. |