The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1905-02-11
DOLE ESTABLISHES
A PRECEDENT
DECIDES A CASE IN BANKRUPTCY
PROCEEDINGS WHICH IS EN-
TIRELY NEW-THE SUBPOENA.

Judge Dole of the United States Dis
trict Court yesterday rendered a
decision on point in bankruptcy law
proceedings, which establishes a prece-
dent. 1t is on point that has never
been adjudicated before.
The decision in the case is as fol-
! lows, and derives it's importance large
ly from the fact that it is the first
case Of the kind that has ever arisen.
The subpoena on the respondent is
according to forms In Bankruptcy No.
s. The respondent filed his motion to
quash the service Of the subpoena on
the ground that such subpoena does
not comply with the requirements pro-
vided by Section IS Of the Bankruptcy
! Act Of 1898, by placing at the bottom
Of such subpoena the following words:
"That the defendants are to enter their
appearance I'm this suit I'm the clerks
Office on or before the day at which
the writ is returnable, otherwise the
bill may be taken pro confesso."
Section IS of the Bankruptcy Act
provides that service of the petition
with a writ of subpoena, shall be
made upon the person therein named
as defendant in the same manner that
service Of such process is now had up
on the commencement Of a suit in
equity I'm the Courts of the United
States" Rule II of the Rules of Prac-
tice for the Courts of Equity Of the
at
bottom of the subpoena shall be placed
a memorandum that the defendant is
to enter his appearance I'm the suit in
the clerks office OH or before the day
at which the writ is returnable; other
wise the bill may be taken pro con-
fesso." Counsel for the respondents
contends that the provision quoted Of
Section IS of the Bankruptcy Act re-
quires such memorandum to be in
| every subpoena issued upon the filing
of an involuntary petition i'm Bank
ruptcy. / am unable to find any case
upon this question. Collier on Bank
ruptcy says on page 211 oath Edition.,
ION the filing of an involuntary petit
ton, the clerk must at once issue a
subpoena, at the bottom of which
must be the memorandum required by
equity rule XII, and 1t and the dupli-
cate petition must then be served in
the same manner that service is
now had upon the commencement of
a suit i'm equity in the courts of the
United States
There is, I'M my mind, a question whe-
Their the statute. in requiring that SER
trip ~ no trrft Of
subpoena shall be made upon the per-
son therein named as defendant i'm the
same manner that service of such pro-
| cess is now had upon the commence
ment OF a suit i'm equity in the courts
of the United States" refers to the
form of the subpoena at all, and whe-
Their 1t does not refer solely to the
manner of the service of such process
as Is provided by Rule 10 of the Equity
Rules, which, as amended by the Act
of 1903, requires such service to be on
the person within the district or, in
case of his absence, by publication.
This doubt is strengthened by Form
No. of the Forms I'm Bankruptcy
| adopted and established by the Su-
preme Court Of the United States in
1898, which is the form of the subpoena
under consideration and which omits
the memorandum referred to I'm Equity
Rule II. This omission is necessary
under the Bankruptcy Act, which pro-
vides in Section IS that the defendant
may appear and plead to the petition
within five days after the return day,
in view Of which a requirement that
the petition should be taken pro con-
fesso unless he should enter his APP
pearance on or before the return day,
would be absurd.
1t would appear, also that the SUI
preme Court, in adopting this form,
considered that the provision of Section
IS, quoted above, referred rather to
the manner Of the service of the sub
poena than to it's form.
1 am therefore led to disagree with
Mr.. Collier, and to conclude that Sec
ton 1s refers only to the manner of
the service Of the subpoena and not to
its form.
The motion to quash is therefore
overruled,
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rpTInGT nTnTG AnATM