In re AGO CONST. CO., Inc.

In re AGO CONST. CO., Inc. District Court, M. D. North Carolina. May 4, 1928. No. 73. Bankruptcy <@=>60 — Naming of receiver, with requirement for$ 10,000 bond, held insufficient to constitute “appointment of receiver,” constituting act of bankruptcy (Bankr. Act, § 3, as amended by Act May 27, 1926, § 3 [II USCA § 21]). Naming of a receiver by superior court judge, who required him to execute a $10,000 bond before entering upon his duties as receiver, held insufficient to constitute “appointment of receiver,” within meaning of Bankruptcy Act, § 3, as amended by Act May 27, 1926, § 3 (11 IJSOA § 21), so as to constitute an act of bankruptcy. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appoint— Appointment.] In Bankruptcy. In the matter of the Ago Construction Company, Inc., alleged bankrupt, wherein an involuntary petition was filed and adjudication had by default. On motion to vacate the adjudication, after it was made to appear that defendant’s officer on whom the subpoena was served was the husband of one of the petitioning creditors. Petition dismissedv J. A. Spence, of Asheboro, N. C., for petitioning creditors. W. A. Cochran, of Troy, N. C., for respondent. Claude N. Sapp, of Chester, S. C., for other creditors. [MAJORITY — ' HAYES, District] ' HAYES, District Judge. After bearing tbe evidence, tbe court finds as a fact that Judge James L. Webb signed an order in a ease pending in tbe superior court of Montgomery county, North Carolina, entitled E. .J. Ingram v. Ago Construction Company, Inc., appointing W. A. Cochran receiver of tbe company, upon bis giving bond in tbe sum of $10,000; but be declined to give tbe bond and to accept tbe appointment as such receiver, and no receiver has been appointed who has qualified.- Tbe property is in tbe custody and under tbe management of tbe Ago Construction Company, Inc. ■ Tbe court is of tbe opinion, and so bolds, that tbe naming of a receiver by a superior court judge, who requires him to execute a bond in tbe sum of $10,000 before entering upon bis duties as receiver, is not sufficient to constitute tbe appointment of a receiver, within tbe meaning of Bankruptcy Act, § 3 (amendment of 1926. [11 ITSCA § 21]), so as to constitute an act of bankruptcy. Since there is no act of bankruptcy alleged, except tbe appointment of tbe receiver under tbe circumstances above shown, tbe petition must be dismissed. It is therefore ordered, adjudged, and decreed that tbe petition of Mrs. Bernice S. Ingram et al. against tbe respondent be dismissed, and that tbe petitioners be taxed with tbe costs.