In re Russell

97 F. 32, 1899 U.S. Dist. LEXIS 162

• Court: District Court, N.D. Iowa
• Decided: September 11, 1899
• Status: Published

Opinion

SHIRAS, District Judge.

The petition originally filed avers that John L. Bussell and John F. Offel were partners under name of Bus-sell & Offel, and prays that the firm be adjudged to be bankrupt, but does not ask that either partner be adjudged to be bankrupt. I find no amendment to the petition in these particulars. The petition is signed by Bussell alone. No appearance was entered by Offel. On April 28, 1899, John L. Bussell was individually adjudged to be bankrupt. The petition for discharge prays that Bussell be granted a discharge from all debts provable against his estate, but does not refer to the partnership debts in any form. As there was no notice given to Offel, the firm could not be adjudged to be bankrupt. Gen. Orders No. 8 (32 C. C. A. xi., 89 Fed. vi.). The petition does not pray for an adjudication of Bussell as an individual, and there Is no foundation in the record for the adjudication that was entered. The adjudication entered is set aside, and the case is again sent to the referee for further proceedings. The petitioner should amend his petition. If it is proposed to have the firm adjudged bankrupt, as well as the partners, the petition should so show, and notice of the. proceedings, under Gen. Orders No. 8, must be given to Offel unless he voluntarily joins in the proceeding. If it is not proposed to adjudicate the firm, the petition must show that Bussell was a member of the firm, and must aver that he asks a discharge against firm creditors as well as individual creditors; and this fact must be set forth in the notice given to creditors of first meeting, also in the petition for discharge and in the notice to creditors thereof. The safer plan is to give notice to Offel to have the firm adjudged bankrupt.