Opinion
No. 4112.
November 17, 1936.
Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston.
Proceeding in the matter of Spurgeon L. Steverson, debtor, wherein Florrie G. Clark and others filed claims. From an order refusing to adjudicate the debtor a bankrupt, the debtor appeals.
Affirmed.
S.P. Knotts, Jr., of Columbia, S.C., for appellant.
M.E. Zeigler, of Orangeburg, S.C., for appellees.
Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.
This is an appeal from an order refusing to adjudicate appellant a bankrupt under subsection (s) of section 75 of the Bankruptcy Act, as amended by the second Frazier-Lemke Act (Act Aug. 28, 1935, § 6 [11 U.S.C.A. § 203(s). The judge below approved findings by the Conciliation Commissioner to the effect that an offer of composition and extension had not been made in good faith by the bankrupt; and he accordingly refused an adjudication of bankruptcy and dismissed the proceedings on that ground. For that reason, he found it unnecessary to pass upon the constitutional validity of the second Frazier-Lemke Act, although this was duly challenged in appellees' motion to dismiss. We find nothing in the record which would justify us in disturbing the order of the District judge approving the findings of the Conciliation Commissioner, and we agree that these afford sufficient ground for denying the adjudication and dismissing the proceedings. In re Borgelt (C.C.A.7th) 79 F.2d 929. In addition to this, we have recently held that the second Frazier-Lemke Act is void because violative of the Fifth Amendment to the Constitution. Robert Page Wright, Bankrupt, v. Vinton Branch of Mountain Trust Bank and five other cases (C.C.A. 4th) 85 F.2d 973. In any aspect of the case, therefore, the judge below properly denied the adjudication and dismissed the petition. The order appealed from will accordingly be affirmed.
Affirmed.