Davis v. City of Homestead

Fifth Circuit

Davis v. City of Homestead

112 F.2d 438, 1940 U.S. App. LEXIS 4319

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 5, 1940

DocketNo. 9393

StatusPublished

Cited by3 cases

This text of 112 F.2d 438 (Davis v. City of Homestead) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Davis v. City of Homestead, 112 F.2d 438, 1940 U.S. App. LEXIS 4319 (5th Cir. 1940).

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Opinion

HUTCHESON, Circuit Judge.

In this case as in American National Bank v. City of Sanford, 5 Cir., 112 F.2d 435, decided May 31, 1940, the appeal is from an order rejecting appellant’s objections to the filing of, and denying its motion to dismiss, the petition in bankruptcy for composition filed by the city, May 1, 1939, under Section 83, sub. j, of the Bankruptcy Act, 11 U.S.C.A. § 403, sub. j. The contentions made here are the same as those made there. Unless the facts are substantially dissimilar, the decision of that case rules this appeal and the orders appealed from must be affirmed.

Appellants insist that the provision in the Homestead voluntary plan, that it should become binding when not less than 75% in amount had consented to it and the fact that more than this amount had consented, makes this a different situation from that in the Sanford case where the plan contained no provision for any particular number of consents.

Appellees reply that this provision is without significance because it is not a provision for closing the plan and taking no further consents after 75% in amount have been obtained. They say too that the position of the City of Homestead is stronger than that of City of Sanford, because while all of the voluntary proceedings in Sanford’s case were begun and •most of them concluded before August 16, 1937, when the amended Municipal Bankruptcy Act was approved, the proposal of the Homestead Voluntary plan was made, and all of the voluntary acts under it were done, after the approval of that act.¹

We think it plain that the facts appellants and appellees rely on as differentiating this case from Sanford’s are without legal significance; and that for the reasons given in that case, the orders appealed from here must be affirmed.

Affirmed.

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HUTCHESON, Circuit Judge.

In this case as in American National Bank v. City of Sanford, 5 Cir., 112 F.2d 435, decided May 31, 1940, the appeal is from an order rejecting appellant’s objections to the filing of, and denying its motion to dismiss, the petition in bankruptcy for composition filed by the city, May 1, 1939, under Section 83, sub. j, of the Bankruptcy Act, 11 U.S.C.A. § 403, sub. j. The contentions made here are the same as those made there. Unless the facts are substantially dissimilar, the decision of that case rules this appeal and the orders appealed from must be affirmed.

Appellants insist that the provision in the Homestead voluntary plan, that it should become binding when not less than 75% in amount had consented to it and the fact that more than this amount had consented, makes this a different situation from that in the Sanford case where the plan contained no provision for any particular number of consents.

Appellees reply that this provision is without significance because it is not a provision for closing the plan and taking no further consents after 75% in amount have been obtained. They say too that the position of the City of Homestead is stronger than that of City of Sanford, because while all of the voluntary proceedings in Sanford’s case were begun and •most of them concluded before August 16, 1937, when the amended Municipal Bankruptcy Act was approved, the proposal of the Homestead Voluntary plan was made, and all of the voluntary acts under it were done, after the approval of that act.¹

We think it plain that the facts appellants and appellees rely on as differentiating this case from Sanford’s are without legal significance; and that for the reasons given in that case, the orders appealed from here must be affirmed.

Affirmed.

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112 F.2d 438, 1940 U.S. App. LEXIS 4319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-city-of-homestead-ca5-1940.

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