The opinion of the court was delivered by: PORT
Memorandum-Decision and Order
The alleged bankrupt's motion to compel Lee Tire & Rubber Company, the petitioning creditor in the above-captioned involuntary bankruptcy proceedings, to accept a jury trial demand which they had rejected as untimely, was denied from the bench for the reasons stated herein.
On July 20, 1967, Lee Tire & Rubber Company filed an involuntary petition in bankruptcy against Maley Tire Co. Inc. On the same date a subpena was issued and on the next day was served upon the alleged bankrupt, Maley Tire Co., Inc.
The subpena was on Form 6 of the Official Forms in Bankruptcy, and provided:
"You are hereby summoned and required to appear and plead to said petition, on or before the 31st day of July, 1967; and if you fail to do so, you may be adjudged a bankrupt by default."
On July 31, 1967, Maley Tire Co. filed its answer to the petition. The answer admitted that the alleged bankrupt was a New York Corporation having its place of business within this judicial district for six months immediately preceding the filing of the petition. It denied all other allegations of the petition including insolvency and the commission of the alleged acts of bankruptcy.
Following the usual procedure, the proceeding was referred to Referee Goldstein by order of Hon. Stephen W. Brennan, Senior District Judge, under date of July 31, 1967. A certified copy of the Order of General Reference was mailed to the attorney for the alleged bankrupt the same day.
Pursuant to the order of reference and the provisions of § 3(d) of the Bankruptcy Act, 11 U.S.C. § 21(d), the Referee ordered a hearing to be held on August 11, 1967, and directed Michael F. Maley, president of the alleged bankrupt to appear and bring the corporation's books, papers and accounts and to testify at said hearing. Service was effected in accordance with the provisions of the order on August 3, 1967.
The affidavit in support of the motion alleges that on or about August 7, 1967, a demand for a jury trial was served upon the attorneys for the petitioning creditor and filed with the Clerk of the court.
It further alleges that on the following day the demand for a jury trial "was rejected by the attorneys for petitioner as being untimely."
TIMELINESS OF APPLICATION FOR JURY TRIAL
The moving affidavit further alleges that the demand was timely under the provisions of § 19 of the Bankruptcy Act, 11 U.S.C. § 42 "in that it was submitted prior to the time an amended Reply could have been made and, additionally, prior to the time which of necessity would have been allowed had other preliminary motions been made."
Section 19(a) of the Bankruptcy Act, 11 U.S.C. § 42(a), provides for a limited right to a jury trial which " shall be deemed to have been waived" in the absence of a timely written application.
The alleged bankrupt concedes that the demand for a jury trial was not filed within the time fixed by the statute for filing an answer unless extended by leave to amend. Its claim to timeliness seems to rest upon its supposed right to file an amended answer,
presumably under the provisions of the Federal Rules of Civil Procedure.
The alleged bankrupt asserts the further ground that the filing of an answer might have been delayed by the making of "other preliminary motions." The short answer to these contentions is that, in fact, there was ...