ROSS et al. v. EUROPEAN MORTG. & INV. CORPORATION (SPENCE et al. Interveners)

ROSS et al. v. EUROPEAN MORTG. & INV. CORPORATION (SPENCE et al. Interveners). No. 5435. Circuit Court of Appeals, Third Circuit. Aug. 2, 1934. Arthur Gr. Logan, of Wilmington, Del. (Robt. A. B. Cook, of Boston, Mass., and James R. Morford, of Wilmington, Del., of counsel), for appellants. Biggs, Biggs, & Lynch, of Wilmington, Del., and Cook, Nathan & Lehman, of New York City (John Biggs, Jr., of Wilmington, Del., Edgar M. Souza, of New York City, and Thomas Epstein, of Brooklyn, N. Y., of counsel), for interveners-appellees. Richards, Layton & Finger, of Wilmington, Del., for appellees Shepardson and others. Before DAVIS, Circuit Judge, and JOHNSON and FORMAN, District Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Three creditors, holding bonds of the alleged bankrupt of a face value of $3.,000; filed a petition in bankruptcy against the European Mortgage and Investment Company, averring acts of bankruptcy. The alleged bankrupt, its equity receivers, and a protective committee and a creditor, holding a total of over $4,000,000 of the obligations of the alleged bankrupt, have intervened and filed answers and moved to dismiss the petition. The petition failed to set out the jurisdictional requirements of section 4b of the Bankruptcy Act, as amended (11 USCA § 22 (b), in that it failed to aver that the alleged bankrupt was not “a municipal railroad, insurance, or banking corporation.” The defect is curable by amendment, but the District Court properly refused to- allow the amendment on the ground that no benefit could be obtained thereby. Woolford v. Diamond State Steel Company (D. C.) 138 F. 582; In re Lippincott & Co. (D. C.) 3 F. Supp. 1019. The matter was determined in the sound discretion of the court. Armstrong v. Fernandez, 208 U. S. 324, 28 S. Ct. 419, 52 L. Ed. 514; In re Frank, 239 F. 709 (C. C. A. 3). The order dismissing the petition is affirmed.