The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1900-06-25
THE PETITION DENIED
To Force Catlin Brothers Into Involun-
tary Bankruptcy in Probate Court.

To Force Catln Brothers Into Involun-
tary Bankruptcy in Probate Court.
Judge Ceaveland of the probate
court Saturday announced his decision
on the petition brought by Attorney
James d. Dewell, jr., acting for the
| Merwin Provision company to force
Catlin Bros. of Broadway into involun-
tary insolvency under the state law
The petition was contested by an at
taching creditor Attorney Dewell
| claimed that since creditors with
! claims aggregating $500 could not be
/ secured to petition for throwing Catlin
| Brothers into involuntary insolvency in
\ the United States court the state law
| covered the case and that the debtors
| could be forced inc involuntary bank
ruptcy in the probate court. The petit
toner offered proof to show Affirmative
~ that the debtor could not be put into
involuntary bankruptcy in the United
| States court, but Judge cleveland
holds that it was not affirmatively
shown and deniea the petition. Judge
Cleaveland's opinion is as follows:
This is a petition to force partnership
INTO involuntary insolvency under the
state laws. 1t is contested by an attaching
creditor, who threatens to sell the part
nership property. 1t Is contended by the
petitioner that the United States Bankrupt
cy Act, which, as construed by the supreme
court Of this state in ketcham VS.. McNa-
mara, decided May LIST, 1900, apparently
suSpends the operation Of the state In.
solvency laws, only suspends them so far
MS the federal act occupies the same field
leaving the state Insolvency laws still in
operation where the ground is not covered
by the United States Bankruptcy Act, and
it Is claimed that in the case pending here,
the assets are about TO be absorbed by the
attaching creditor and that the petitioner
has no remedy under the United States
Bankruptcy Act.
In the light of this recent decision Of our
supreme court which appears to be more
sweeping In Its effect than is conceded by
the petitioner, we have grave doubts
whether there is much room left In this
state for the operation of the state insolv-
ency laws, but 1t is unnecessary to con
cases still left within the jurisdiction of the
probate courts Of this state under those
laws, as it Is plain, even If there are such
cases, that it would be necessary that the
creditor thus attempting to take advantage
of the state laws should first clearly show
that he has no available remedy under the
United States Bankruptcy Act, in other
words, that the debtor cannot be forced
into bankruptcy in the United States dis.
trict court. This has not been shown In
this case.
Under the United States Bankruptcy Act
of 1898, where a debtor owes one thousand
dollars or over, and has twelve or more
creditors, any three or more creditors
whose claims aggregate FIVE hundred dol
lars or over, may force the debtor into in
committed an "act of bankruptcy"
It appears from the evidence offered by
the petitioner, of the debtors themselves,
that their total Indebtedness exceeds one
thousand dollars; that they have more than
twelve creditors; that exclusive of the
claim of the attaching creditor they owe
both have declared under oath, their re-
fusal to go into voluntary bankruptcy.
NO evidence was offered to show that the
petitioner, before bringing his petition to
this court, had attempted to enlist the CO.
operation of the other, creditors to force
the debtors into involuntary insolvency, nor
did it appear from the evidence that the
debtors had not committed an "act of
II is urged by the petitioner that the
threatened sale by the attaching creditor
entire assets, the debtors refusing to go |
into voluntary bankruptcy, but, under see |
ton three of the United States Bankruptcy |
Act, If debtor does not vacate or dis
charge preference obtained by creditor \
through legal proceedings at least Ave days |
before sale or final disposition of any |
affected by such preference, such |
omission is itself defined as an ''act of |
enabling creditors to institute
Involuntary bankruptcy proceedings before |
the attached property is disposed Of In re
Reichman, / American Bankruptcy Reports,
n IN 70 Rome Planning Mills American
Reports. 1913 The fact that it
has not been aflirmatvely shown that the
debtor cannot be put into involuntary
in the United States court rel-
lers it unnecessary TO consider whether
Ibis court could afford relief If il had been |
shown that no such remedy was available.
The petition is dismissed.
LIVINGSTON w. CLEAVELAND,
Judge. |