C. I. T. Corp. v. Himes

98 F.2d 589, 1938 U.S. App. LEXIS 3276

Opinion

BUFFINGTON, Circuit Judge.

The facts of this bankruptcy case are detailed in the opinion of the court below, 23 F.Supp. 121.

After consideration, we find ourselves in accord therewith.

The gist of the case is summed up by the trial judge as follows:

“The claim as filed makes no mention of any such instrument. Section 57b of the Bankruptcy Act, 11 U.S.C.A. § 93(b), provides: . ‘Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim.’ To effectuate any amendment of claim the guaranty would have to be filed. An effective amendment would in reality be a new claim, invalid under section 57n [11 U.S.C.A. § 93 (n)].”

So regarding, the order of the court is affirmed.

DICKINSON, District Judge, concurs in the result.