DAVIS v. NATIONAL SURETY CO. et al.

DAVIS v. NATIONAL SURETY CO. et al. No. 5777. Circuit Court of Appeals, Fifth Circuit. March 18, 1930. Richard B. Montgomery and Richard B. Montgomery, Jr., both of New Orleans, La., L. A. Dean, of Rome, Ga., and Harry F. Stiles, Jr., of New Orleans, La., for appellant. J. R. Whitaker, of Cartersville, Ga., and Graham Wright, of Rome, Ga. (Wright & Covington, of Rome, Ga., on the brief), for appellees. Before BRYAN and FOSTER, Circuit Judges, and BORAH, District Judge. Rehearing denied April 25, 1930. [MAJORITY — PER CURIAM.] PER CURIAM. To the petition of creditors alleging that he was insolvent and within four months had committed an act of bankruptcy by making an assignment of all his property, the appellant bankrupt answered denying insolvency and the act of bankruptcy alleged. During the trial upon the issues so raised, appellant sought, hut was refused, leave of court to file an amended answer denying that he was indebted to petitioners in excess of securities held by them. There was a verdict and judgment for appellees. Whether appellant should have been allowed to amend his answer after the trial was begun and without previous notice was a question that was in the sound discretion of the trial court. Equity Rule 30 (28 USCA § 723). No reason was, or, considering the nature of the new defense, could well he, given for appellant’s failure to offer the amendment in time to enable the creditors to meet it by proof. No abuse of discretion is shown. The judgment is affirmed.