FORM NO. 107. 108. Petition to vacate Adjudication in Involuntary Proceedings, 2213. 111. Petition to transfer Proceedings to another District, 2222. 2223. 113. Order authorizing Ancillary Proceedings in Partnership Case, 2225. 114. Order transferring Proceedings to another District, 2226. Form No. 64 VOLUNTARY PETITION BY CORPORATION WITH RESOLUTION OF BOARD OF DIRECTORS (Hager and Alexander's Bankruptcy Forms [2d Ed.], No. 3.) To the Honorable Judge of the District Court of the United States, for the The petition of District of respectfully represents: in the city of That it is a corporation duly created, organized and existing under and by virtue of the laws of the State of and is not a municipal, railroad, insurance or banking corporation; that it has had its principal place of business and has carried on its principal business for the greater portion of six months next immediately preceding the filing of this petition at No. ... in the city of within said judicial district; that it owes debts which it is unable to pay in full; that it is willing to surrender all of its property for the benefit of its creditors, except such as is exempt by law, and desires to obtain the benefit of the Acts of Congress relating to bankruptcy. That the schedule hereto annexed, marked A, and verified by your petitioner's oath contains a full and true statement of all its debts. and (so far as it is possible to ascertain) the names and places of residence of its creditors and such further statements concerning said debts as are required by the provisions of said acts: That the schedule hereto annexed marked B, and verified by your petitioner's oath, contains an accurate inventory of all its property, both real and personal, and such further statements concerning said property as are required by the provisions of said acts: day of That at a meeting of the board of directors of your petitioner duly called and held on the .. 19.., at preamble and .... which all of its directors were present, the following resolution were duly and unanimously adopted, viz.: "Whereas this corporation .... is unable to pay its debts and is insolvent within the meaning of the Acts of Congress relating to bankruptcy: Resolved, That this corporation petition the United States District Court for the ....... District of ... for the its adjudication as a bankrupt, and that president of this corporation, be and he hereby is authorized and directed to make, verify and file all such petitions, schedules and other papers as may be requisite or necessary to procure such adjudication." Wherefore your petitioner prays that it may be adjudged by the Court to be a bankrupt within the purview of said acts. tioned and described in the foregoing petition, and I do hereby make solemn oath that the statements contained therein are true according to the best of my knowledge, information and belief. 19... Subscribed and sworn to before me this ........ day of................ (Official character.) Cross-references.-See §§ 4 and 18, Vol. I, ante. Also notes following Official Form No. 1. General Orders IV, V, VI, XI. Form for involuntary petition against corporation, see Form No. 70, post. Power of corporate board of directors to authorize filing of voluntary petition in absence of statutory limitations. Dodge v. Kenwood Ice Co. (C. C. A., 8th Cir.), 29 Am. B. R. 586, 204 Fed. 577, 123 C. C. A. 103, aff'g In re Kenwood Ice Co. (D. C., Minn.), 26 Am. B. R. 499, 189 Fed. 525. In re Guanacevi Tunnel Co. (C. C. A., 2d Cir.), 29 Am. B. R. 229, 201 Fed. 316, 119 C. C. A. 554. In re Foster Paint and Varnish Co. (D. C., Pa.), 31 Am. B. R. 548, 210 Fed. 652. Authority of board notwithstanding State statute prohibiting any sale, assignment or transfer of property without consent of stockholders. Bell v. Blessing (C. C. A., 9th Cir.), 35 Am. B. R. 672, 225 Fed. 750. See, on corporate authorization. In re Jefferson Casket Co. (D. C., N. Y.), 25 Am. B. R. 663, 182 Fed. 689. trict, by occupation respectively ... ... and shows: That your petitioners and partners under the style of .... ..... of in said dis.., respectfully are and have been which partnership of has had its principal place of business at the in the county of ........., in said district,22 for the greater portion of the six months immediately preceding the filing of this petition; and that said partnership is insolvent and owes debts in excess of one thousand dollars ($1,000). That your petitioners as individuals each owes debts which he is unable to pay in full. That such partnership and your petitioners are willing to surrender its and their property for the benefit of its and their creditors, respectively, except such as is exempt by law, and desire to obtain the benefits of the bankruptcy law of 1898, as amended. has refused and still refuses to join in this petition; that he is neither a wage-earner nor a person engaged chiefly in farming or the tillage of the soil, and as an individual, owes debts which he is unable to pay in full. That 23 such partnership has been dissolved, but there has as yet been no final settlement thereof. That the schedule hereto annexed marked A, and verified by your petitioners' oaths, contains a full and true statement of all the debts of said partnership, and (so far as it is possible to ascertain) the names and residences of its creditors, and such further statements concerning said debts as are required by said law. That the schedule hereto annexed marked B, and verified by your 22. If the petition is filed in the district of the domicile or residence of one of the partners, here add an allegation to show the fact. 23. If there has been a dissolution, use this clause, modifying slightly the previous allegations to fit; if not, leave it out. See § 5-a. 24 petitioners' oaths, contains an accurate inventory of all of the property of said partnership, both real and personal, and such further statements concerning said property as are required by said law. That the schedule hereto annexed marked C, and verified by the oath of your petitioner contains a full and true statement of all of his individual debts, and (so far as it is possible to ascertain) the names and places of residence of his individual creditors, and such further statements concerning said debts as are required by said law. That the schedule hereto annexed marked D, and verified by the oath of your petitioner contains an accurate inventory of all of his individual property, both real and personal, and such further statements concerning said property as is required by said law.25 26 Wherefore, your petitioners pray that such partnership and your petitioners as individuals may be adjudged bankrupt within the purview of such bankruptcy law of 1898, as amended, and that service of this petition with a subpoena be made upon such nonconsenting partner, and that such proceedings be had as are provided in said law and General Order VIII of the Supreme Court and as the court may order. debtors mentioned and described in the foregoing petition, do severally make solemn oath that the statements of fact contained therein 24. If exemption is claimed in the partnership assets, insert a reference to such claim here. See § 6, ante. 25. Repeat the last two paragraphs as to each partner, numbering the schedules, Schedule E and F, G and H, etc. 26. Prayer should ask for an ad judication of the individuals as well as of the firm. In re Wing Yick Co. (D. C., Hawaii), 13 Am. B. R. 757. And see text of § 5, Vol. I, ante. 27. Schedules should be complete both for the firm and for each partner. In re Gay (D. C., N. H.), 3 Am. B. R. 529, 98 Fed. 870. are true, according to the best of our knowledge, information, and belief.. Subscribed and sworn to before me, this ...... day of .... 19... [Attach schedules and summary statements for each the partnership and the petitioning partners, using those suggested by Form No. 1, but changing their lettering to correspond to the allegations of the petition.] Cross-references.- Consult, generally §§ 5 and 18, and see General Orders VI, VII, and VIII. This form can be adapted to a case where all the partners join, and then used as a substitute for Form No. 2. Proceeding voluntary as to petitioning partner and involuntary as to nonjoining partner. Subpoena.- Before adjudication can be had, a subpoena must issue and be served with a copy of petition on the latter and he may defend in same way as if an involuntary petition were filed against him. In re Murray (D. C., Iowa), 3 Am. B. R. 601, 96 Fed. 600. In re Junck and Balthazard (D. C., Wis.), 22 Am. B. R. 298, 169 Fed. 481. If non-assenting partner is an absentee from jurisdiction he must be brought in by publication. See in re Murray (D. C., Ia.), 3 Am. B. R. 601, 96 Fed. 600. In re Russell, 3 Am. B. R. 91, 97 Fed. 32. The filing of a petition by one partner against co-partners cannot be deemed an act of bankruptcy on the part of the partnership. In re Ceballos and Co. (D. C., N. J.), 20 Am. B. R. 459, 161 Fed. 445. In re Hansley and Adams (D. C., Cal.), 36 Am. B. R. 1, 228 Fed. 564. See, In re J. and M. Schwartz (D. C., N. Y.), 30 Am. B. R. 344, 204 Fed. 326. The proceedings as to creditors is, however, voluntary and creditor may not file answer. In re Junck and Balthazard (D. C., Wis.), 22 Am. B. R. 298, 169 Fed. 481. What non-assenting partner may plead; may set up defense of solvency, and entitled to jury trial. In re Forbes (D. C., Mass.), 11 Am. B. R. 787, 128 Fed. 137. Under General Order VIII entitled to same notice as if petitioned against. In re Altman, 2 Am. B. R. 407, 95 Fed. 263, affg. 1 Am. B. R. 689. In re Laughlin, 3 Am. B. R. 1, 96 Fed. 589. In re Carleton (D. C., Mass.), 8 Am. B. R. 270, 115 Fed. 246. In re Freund, 1 Am. B. R. 25. Whether court has jurisdiction to adjudge non-consenting partner a bankrupt individually. In re Meyer (C. C. A., 2d Cir.), 3 Am. B. R. 559, 98 Fed. 976, 39 C. C. A. 368, affg. 1 Am. B. R. 565, 92 Fed. 896. |