in said district, on the 19..., and shows $..... ........ day of on hand for distribution; III. For the purpose of declaring and ordering paid a final dividend herein; IV. To transact such other business as may properly come before said meeting. 97 Notice is also given that, unless proofs of debt are filed on or before the day set for such meeting, the same cannot share in such dividend. ORDER AUTHORIZING COMPROMISE (Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 117.) United States District Court, for the .. District of IN THE MATTER OF In Bankruptcy No. Bankrupt. Upon reading and filing the petition of trustee herein, duly verified, praying for authority to compromise a controversy with ... .. and all the proceedings heretofore had herein, and a meeting of creditors having been duly held before the referee herein on ten days' notice, to consider the proposed compromise of the controversy with the said ... objections having been filed and no one having appeared in opposition thereto, and no Now, on motion of attorney for the said trustee, it is 97. This clause should also be added to the notice of the first dividend. Ordered, that the trustee herein, be and he hereby is authorized to settle and compromise the controversy with for the sum of and the said trustee is authorized to execute the necessary of the city of ... $... (Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 118) United States District Court, 1. That your petitioner is the trustee in bankruptcy in the above. entitled proceeding, having been duly appointed such trustee on the day of 19..., and having thereafter duly qualified by filing the required bond, and is now acting as such trustee. 2. That your petitioner, through his attorney, conducted an examination of the bankrupt and his wife, and based upon the testimony adduced at such examination, brought an action in the court, .... county, for the purpose of setting aside certain preferential transfers. That your petitioner was also substituted as party-plaintiff in an action pending in the Supreme : said and the bank action being for an accounting with reference to the partnership heretofore existing between the said rupt herein. That your petitioner has been ordered by the court in this proceeding to. file security for costs, and cannot proceed with said action until same has been filed. 3. Your petitioner has no cash nor assets, other than said claim, in his hands, and feels that he should be indemnified both as to such security already demanded and for his costs and expenses in carrying on this litigation, and your petitioner believes and has been advised. by counsel that the sum of $........ which should be furnished before requiring petitioner to proceed further with the litigation, would be a just and equitable indemnity. Wherefore, your petitioner prays that a meeting of creditors be called herein and that said creditors be cited to show cause why they should not furnish proper indemnity to the trustee, or why your petitioner should not be permitted to discontinue the aforesaid actions in the event of the creditors failing to indemnify him in the amount above set forth. [Verification.] Cross-reference.- See § 47, Vol. II, ante. Petitioner. Form No. 179 PETITION THAT BANKRUPT TURN OVER CONCEALED ASSETS UPON SUMMARY ORDER (Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 119.) 1. That he is the trustee herein duly qualified and acting. 2. Petitioner respectfully alleges that through his attorney, he has examined the bankrupt and other witnesses in this proceeding and thoroughly investigated the books of the bankrupt and the circumstances connected with this bankruptcy. 3. Petitioner alleges, upon information and belief, that ... the said bankrupt has in his possession or under his control the following property belonging to his said estate in bankruptcy: That the said bankrupt is fraudulently concealing same from your petitioner as trustee. 4. That said property so concealed amounts in value to at least $..... 5. That the sources of petitioner's knowledge and the grounds of his belief as to this property are as follows: [Here specify fully.] 6. No previous application has been made for an order herein. Wherefore, your petitioner prays for an order directing the bankrupt to turn over and deliver forthwith to your petitioner, all of such property or moneys so concealed, and for such other and further relief as may be just and proper. [Verification.] Cross-references.- See §§ 41 and 47, Vol. II, ante. "Turn over" motions.- Jurisdiction. Petitioner. An order requiring a bankrupt to surrender assets in his possession or control is not an order for payment of a debt. Samel v. Dodd (C. C. A., 5th Cir.), 16 Am. B. R. 163, 142 Fed. 68, 73 C. C. A. 254. In re Epstein (D. C., Pa.), 15 Am. B. R. 711. In re Schlesinger (D. C., N. Y.), 3 Am. B. R. 342, 97 Fed. 930. In re Gerstel (D. C., Ill.), 10 Am. B. R. 411, 123 Fed. 166. In re McCormick (D. C., N. Y.), 3 Am. B. R. 340, 97 Fed. 566. In re Logan (D. C., N. Y.), 28 Am. B. R. 543, 196 Fed. 678. When bankrupt is not informed that order is sought. In re Atwater (D. C., N. Y.), 36 Am. B. R. 109, 227 Fed. 511. In re Rosser (C. C. A., 8th Cir.), 4 Am. B. R. 153, 101 Fed. 562, 41 C. C. A. 497. What does not constitute a waiver of jurisdiction. In re Bacon (C. C. A., 2d Cir.), 31 Am. B. R. 777, 210 Fed. 129, 126 C. C. A. 643, affg. s. c. 28 Am. B. R. 565. No extra-territorial jurisdiction. In re Geller (D. ('., N. Y.), 32 Am. B. R. 629, 216 Fed. 558. In re Rathfon Bros. (D. C., Mich.), 29 Am. B. R. 22, 200 Fed. 108. Robertson v. Howard (U. S. Sup.), 30 Am. B. R. 611, 229 U. S. 254, 57 L. Ed. 1174. In re Boston-Cerrilos Mines Corp. (D. C., N. M.), 30 Am. B. R. 739, 206 Fed. 794. In re Heintz (C. C. A., 6th Cir.), 29 Am. B. R. 19, 201 Fed. 338, 119 C. C. A. 576. Bankrupt's denial of possession of the property not conclusive. In re Schachter, 9 Am. B. R. 497, 119 Fed. 1010. In re Frankfort (infra). Recent possession of property.- [See § 41, Vol. I, ante.] Good v. Kane (C. C. A., 8th Cir.), 32 Am. B. R. 19, 211 Fed. 956, 128 C. C. A. 454. Kirsner v. Taliaferro (C. C. A., 4th Cir.), 29 Am. B. R. 832, 202 Fed. 51, 120 C. C. A. 305. In re Ricciardelli (D. C., N. J.), 35 Am. B. R. 35, 224 Fed. 638. In re Dixon (D. C., Mass.), 35 Am. B. R. 482, 224 Fed. 624. In re Silverman, 30 Am. B. R. 798, 206 Fed. 960. When evidence sufficient to warrant order. In re Averick (D. C., Pa.), 22 Am. B. R. 518, 170 Fed. 521. In re Reese (D. C., Pa.), 22 Am. B. R. 521, 170 Fed. 986. In re Belluscio (D. C., N. Y.), 25 Am. B. R. 660. Practice. Application usually by trustee's petition to referee direct; may be made to judge and referred to a special master. In re Herakowitz (D. C., N. Y.), 18 Am. B. R. 247, 152 Fed. 316. In re Rothschild, 5 Am. B. R. 587. Petition should contain definite allegations so that bankrupt may know what he is called upon to deliver or turn over." 66 In re Greer, 26 Am. B. R. 811, 189 Fed. 511. Use of a demurrer not proper practice. In re Snelling (D. C., Mass.), 29 Am. B. R. 817, 202 Fed. 258. See, In re Mullen, 4 Am. B. R. 224, 101 Fed. 413. In re Berkman, 201 Fed. 180. A distinct issue should be made by petition and answer. In re Lasch, 12 Am. B. R. 158. In re Pearson, 2 Am. B. R. 819. In re Friedman, 1 Am. B. R. 510. Where petition is indefinite or uncertain in its averments the referee does not lose jurisdiction, but a motion that it be made more definite and certain is proper remedy. In re Frank (C. C. A., 8th Cir.), 25 Am. B. R. 486, 182 Fed. 794, 105 C. C. A. 226. Degree of proof required, "Beyond reasonable doubt."— In re Frankfort (D. C., N. Y.), 15 Am. B. R. 210, 144 Fed. 721. In re Weinreb (C. C. A., 2d Cir.), 16 Am. B. R. 702, 146 Fed. 243, 76 C. C. A. 609. In re Alphin and Lake Cotton Co., 14 Am. B. R. 194, 134 Fed. 477. In re Leinweber (D. C., Conn.), 12 Am. B. R. 175, 128 Fed. 641. In re Feldser (D. C., Pa.), 14 Am. B. R. 216, 134 Fed. 307. VOL. III-10 |