In re O'Neill

286 F. 530, 1923 U.S. Dist. LEXIS 1806

• Court: District Court, S.D. Florida
• Decided: February 14, 1923
• Docket: No. 2421
• Status: Published

Opinion

CLAYTON, District Judge.

This cause is submitted on the motion of the alleged bankrupt to dismiss the involuntary petition filed by the creditors against him, upon the grounds: (1) That it does not specify, the time of the alleged commission of the acts of bankruptcy; (2) that it does not specify that petitioners were creditors of the alleged bankrupt at the time of the acts of bankruptcy charged.

Considering the objections to the petition in the reverse order, it is to be observed that the second objection is not well taken, because the petition does sufficiently state that the three—

“petitioners are creditors of said W. E. O’Neill, baying provable claims against him which amount in the aggregate, in excess of the value of securities held by them, to five hundred ($500.00) dollars; and that neither of your petitioners are entitled to priority of payment in this said claim within the meaning of section 64 (b) of the Bankruptcy Law of 1898 (Oomp. St. § 9648), nor has either of your petitioners received a preference within the meaning of section 60 (a) and (b) of such law as amended (Oomp. St. § 9644).”

Thus the petitioners’ debts against the bankrupt are set forth with reasonable particularity, accompanied by other usual necessary allegations.

As to the first objection urged, the petition alleges that within four months preceding the filing of this petition, viz. on or about the 10th day of October, 1922, the said W. E. O’Neill, while insolvent, committed an act of bankruptcy, in that he did transfer a portion of his property to one of his creditors, to wit, the East J2oast State Bank & Trust Company, of Daytona Beach, Fla., with intent to prefer such creditor over his other creditors.

I think this allegation is insufficient. The act of bankruptcy should be stated with particularity, giving such sufficient facts as to time, place, transaction, and other necessary information to show the commission of the act or acts bringing the case within section 3a.

The petitioning creditors ask leave, if their petition be held to be insufficient, to amend the same. Accordingly, such leave is granted.