Sutter Hotel Co. v. Decker Electrical Const. Co.

ROSS, Circuit Judge (after stating the facts as above). [1] The order, being conditional, necessarily was not final. It was therefore not appealable. *370 [2] The return of the marshal, showing that he had served the petition of the petitioning creditors and the subpoena upon the president of the alleged bankrupt corporation, while not conclusive evidence of the fact, was nevertheless prima facie evidence of it. And when that prima facie showing was sought to be overcome by the affidavit filed on behalf of the adjudicated bankrupt in support of its motion to vacate the order of adjudication' and quash the service upon Woodward, upon the ground that the person upon whom the service was made was not at the time an officer of the alleged bankrupt, the court, on hearing the motion, so supported, and at the same time opposed by affidavit filed on behalf of the petitioning creditors seriously calling in question, not only the fact, but the good faith, of the pretended vacation by Woodward of the office of president of the alleged bankrupt, gave the adjudicated bankrupt five days within which to appear and plead to the petition, failing to do which, it ordered that the order of adjudication should stand as entered. The order made in disposing of the motion afforded the alleged bankrupt ah opportunity to make good its pretension that Woodward was not its president at the time of service upon him of the petition and subpoena by the marshal. As it did not even undertake to do so, the order of adjudication manifestly stood. We see no merit in any of the contentions on the part of the appellant. Appeal dismissed.