The Montgomery advertiser., 1906-03-31
THE BILLING CASE
JUDGE JONES MAKES TWO IMPORT
 ANT ORDERS.
Petition to Have Adjudication of Bank- ruptey Set Aside is Denied and Proposition of Receivers
 Confirmed.

Xrwo orders, bearing upon the litiga- tiNp in the bankruptcy proceedings of F. M. Billing were issued by Judge Thomas G. Jones of the United States Court yesterday.
 As a result, the composition which the receivers in the bankruptcy case had proposed to the creditors, and which had been accepted by them. will be made. while the petition recently submitted by Charles B. Teasley, as ad- ninistrator of s. H. Downer, deceased, to have the former adjudication in the case set aside, has been denied.
 These orders are regarded as being most important by reason of the mum Der of creditors affected by them. At the time of the failure of Josiah MOT rss & Co, of which F. M Billing was head, 1t was found that the liabilities of the concern amounted to approxi- naatefy $f,00e,000. The company was declared bankrupt, and receiver was appointed.
 Recently the receiver made an offer Of compositfon to all the creditors, which was accepted by the majority of them and the date for this proceeding xwas act for last Wednesday,. Two weeks ago, however, petition by Charles B. Teasley, as administrator . for S H. Downer, was presented to the Court asking that the original adJudi- cation in the matter be set aside, alleg- ing errors in matter of law in making 1t and collision in the procurement of the same When the date set for the composition was reached, this latter proceeding was postponed, pending the decision of the court upon the Downer petition.
 in his order denying the petition. Judge Jones found that there was no coilusion which would authorize the vacation of the adjudication. The or der follows:
 ssfn the District Court of the United
 States for the Middle District Of
 Alabama. in Bankruptcy.
 Tn re F. M. Billing Bankrupt:
 ,.On this, the day set for the hearing of the petition of Charles B. Teasley. as administrator of s. H. Downer. de- ceased. to vacate the adjudication of bankruptcy heretofore rendered, came the said Teasley and also the petition ing and other creditors; and thereupon the petftion and other creditors demur to the petition of said Teasley and deny each of the allegations thereof, end also file four special pleas thereto as more fully appears from said an swer, demurrers and pleas on hle; thereupon, said Teasley demurred to p1eas two, three and four, respective lv. on the grounds set forth in the de- faurrers on file; and thereupon, the court, being of opinion that in so far as the petition herein allege errors in matter of law in making the adjudica- tiou. these questions must be tested soieIy by the record upon which the adiudIcation was de as the said re- .ord existed at ahe time thereof, and not by the Allegations made as to it's contents in the peti- tion to vacate the adjudication,
 .sWherefore, the court declines to pass upon the demurrers to the petition herein, or upon the demurrers to the pleas contained in the answer. but an- nounced that it would try all such is sues of law upon the record as it ap- pears the time the adjudication was made, but that it would hear evidence as to the alleged collusion in the pro- curement of the adjudication; there upon the petitioner, said Teasley, in sisted that the court rule upon his said denurrers to said plea, and the court declined to do so, and said Teasley ex- cepted to the action of the court; and thereupon. the creditors who resisted the application to vacate said adjudi- cation, offered in evidence the record of the bankruptcy proceedings at the date when the adjudication was rem dered, including therein, the evidence taken before the referee, to whom it was referred to ascertain and 1eport, whether said Billing was insolvent and had committed an act of bankruptcy, and also the report of the referee and the decree making the adjudication; thereupon, the court heard evidence touching the alleged collusion, and the matters and things in issue having been duly argued by counsel and un- derstood by the court, 1t is of opinion and finds that there was no collusion which would authorize the vacation of the adjudication, and that the consent of bankrupt who adjudged was not unlawful; that the petition in the bankruptcy proceedings contained all the jurisdictionaI allegations, and that 1t was not controverted at the time of the adjudication, and being thus unresisted, authorized and re- quired an adjudication as upon default, without the taking any proof as to the truth of the facts alleged in the bankruptcy in tho bankruptcy proceed ing: that the only remedy for error, after Jurisdiction attached, is by ap- peal within the time prescribed by law, which had long since expired, wheE the petition herein was filed, and that neither the petitioner nor his interests having taken such an appeal, can now complain of any error of law which inc tervened in the adjudication; and fur ther, that if the petitioner or his in- testate could raise the question as to the failure to Iake proo1 or the act of bankruptcy and the insolvency of the bankrupt, the record of the bank ruptcy cause shows that such proof was, in fact, made, showing the insol- vency of the bankrupt, and the com mission of the act of bankruptcy charged in the petition; and further. that all these matters asideS petition- CTS intestate was guilty of Iaches in not appearing and contesting the bank ruptcy proceedings before adjudication, and cannot be heard to move to vacate