Superior Manufacturing Corporation v. Hessler, Manufacturing Company M. L. Foss, Inc. And Howe MacHine & Supply Company, in the Matter of the Superior Manufacturing Corporation, Bankrupt, 267 F.2d 302, 10th Cir. (1959)
Superior Manufacturing Corporation v. Hessler, Manufacturing Company M. L. Foss, Inc. And Howe MacHine & Supply Company, in the Matter of the Superior Manufacturing Corporation, Bankrupt, 267 F.2d 302, 10th Cir. (1959)
Superior Manufacturing Corporation v. Hessler, Manufacturing Company M. L. Foss, Inc. And Howe MacHine & Supply Company, in the Matter of the Superior Manufacturing Corporation, Bankrupt, 267 F.2d 302, 10th Cir. (1959)
2d 302
"7. That the Debtor has committed an act of bankruptcy in that the said Debtor
has preferred the claim of one of its Creditors, namely, Thomas K. Hudson,
who is also an Officer and Director of said corporation by turning over to the
said Thomas K. Hudson all of the stock, fixtures, furnishings, equipment and
patent rights concerning the popcorn machine owned by the said Debtor in
consideration of the cancellation of an alleged obligation of the corporation to
the said Thomas K. Hudson in the sum of approximately One Hundred
Thousand and no/100 ($100,000.00) Dollars. That the Petitioners have no other
adequate remedy other than the Bankruptcy Act and therefore Petitions this
"7. That the Debtor has committed an act of bankruptcy in that the said Debtor
within four months of the filing of this Petition, to-wit, on the 16th day of May,
1957, while insolvent has preferred the claim of one of its Creditors, namely,
Thomas K. Hudson, who is also an Officer and Director of said corporation by
turning over to the said Thomas K. Hudson or for his benefit all of the stock,
fixtures, furnishings, equipment and patent rights concerning the popcorn
machine owned by the said Debtor and of the value of over $32,000.00 in
consideration of the cancellation of an alleged unsecured obligation of the
corporation to the said Thomas K. Hudson in the sum of approximately One
Hundred Thousand and no/100 ($100,000.00) Dollars on account of an alleged
antecedent debt in the amount of between Ninety Thousand and no/100
($90,000.00) and One Hundred Thousand and no/100 ($100,000.00) Dollars.
The effect of which transfer will be to enable the said Thomas K. Hudson to
obtain approximately thirty (30%) per cent to thirty-three and one-third (33
1/3%) per cent of his debt, while the other creditors of the same class will
receive nothing or much less than the above percentage. That at said time and
place, and while the said Debtor was insolvent, the said Debtor did make the
said conveyance as above set forth to the said Thomas K. Hudson or for his
benefit of the aforesaid assets of the Debtor with the intention of allowing and
permitting the said Thomas K. Hudson to receive a preferance (sic) over
Creditors of the same class as herein set forth. That the Petitioners have no
other adequate remedy other then (sic) the Bankruptcy Act and therefore
It will be noted that in the petition filed October 21, 1957, an act of bankruptcy
is alleged to have occurred on May 16, 1957, a period in excess of four months
prior to the filing date but within four months of the date of the filing of the
first and defective petition of September 11. Appellant contends that the second
petition is also defective because it is not an amendment to the original petition
and further, even if construed as an amended pleading, the amendment does not
relate back to the date of original filing. We find no merit to either contention.
General Order 37, 11 U.S.C.A. following 53 makes Rule 15(c), Federal Rules
of Civil Procedure, 28 U.S.C.A., applicable to matters in bankruptcy and
completely negatives appellant's contention that the amended petition does not
"Whenever the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set forth in
the original pleading, the amendment relates back to the date of the original
pleading."
11
We conclude, as did the referee and District Court, that appellees' second
petition is an amended pleading to be considered as relating back to the date of
original filing, September 11, 1957, and consequently alleges an act of
bankruptcy. Having so concluded, it follows that appellant's motion to dismiss
and answer, both of which attacked the sufficiency of the second petition,
would have availed it nothing even had it been filed within time. The referee
held extensive hearings on the motion to vacate the adjudication in bankruptcy
and nothing in the record indicates appellant could have made an effective
defense upon the merits. Under such circumstances, no abuse of discretion
appears.
12
Much of appellant's brief is directed to a claim that the order of the referee
setting the time within which appellant could respond to the amended petition
was in fact ten days rather than five as appears in the record. Such an argument
cannot be presented to this court. The record of the District Court cannot be
impeached upon appeal, and if in error, must be corrected in the District Court.
Rule 75(h), Federal Rules of Civil Procedure.
13
Affirmed.