O'Leary v. Turner , 209 F.2d 149 ( 1953 )

209 F.2d 149

O'LEARY,
v.
TURNER et al.

No. 11846.

United States Court of Appeals
Sixth Circuit.

Dec. 18, 1953.

Joseph O'Leary, Akron, Ohio, for appellant.

Frank Kaufmann, Akron, Ohio, for appellees.

Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

PER CURIAM.

1

This is an appeal from an order of the District Judge dismissing an application to adjudicate the appellee Turner as a bankrupt. The referee had found the petition invalid under the statute in that two out of three creditors who had joined in the petition had subsequently withdrawn; that, in any event, one of them held an unliquidated claim and that a fourth creditor who after the filing had sought to intervene as signatory to the petition likewise held an unliquidated claim. Upon review of the referee's order, the District Judge approved the findings and conclusions of the referee and dismissed the petition for review. 109 F.Supp. 920.

2

Setting aside the contention that creditors signing an involuntary petition in bankruptcy can never withdraw therefrom, a contention that we see no necessity to determine, we affirm the order of dismissal on the ground that two of the creditors were not qualified to maintain an involuntary petition. The contention that their claims were liquidated must be rejected. There is nothing in the appendix record to show the nature of the claims except that the larger of the two creditors had brought suit in the State Court wherein its claim was denied and its suit defended and no adjudication had been reached. There being nothing before us to show the nature of this claim, we must assume that the referee and judge each based his decision upon evidence which supports it. Wherefore,

3

The order of dismissal of the involuntary petition is affirmed.