Corey

Appellants, husband and wife, were at all pertinent times farmers and residents of Santa Clara County, California. Appellee was at all pertinent times the holder of appellants’ matured note secured by a deed of trust on 21.303 acres of land owned by appellants in Santa Clara County.

On May 26, 1938, appellants filed in the District Court of the United States for the Northern District of California a petition stating that they were unable to meet their debts as they matured, and that they desired to effect a composition or extension under § 75 of the Bankruptcy Act, 11 U.S. C.A. § 203. The petition was approved as properly filed, and the case was referred to the conciliation commissioner for Santa Clara County. On November 7, 1938, appellants filed an amended petition, stating that they had failed to obtain acceptance of a composition or extension proposal, and asking to be adjudged bankrupts under subsection s of § 75. They were so adjudged on November 8, 1938.

On January 7, 1942, appellee petitioned the court to order the appointment of a trustee and to order a sale of the above mentioned land. Appellants answered, praying that appellee’s petition be denied. On April 18, 1942,…

(dissenting).

I am unable to agree that appellants have not had the benefit of the orderly procedure prescribed by subsection s of § 75 of the Act. The fullness with which the facts have been set out makes it possible in brief compass to state the reasons for my dissent.

The Act does not in terms require that the appointment of appraisers be in writing or that the oath administered be in writing. It is true that the General Orders contemplate a written appointment and oath, but it can hardly be thought that the failure, if any, to follow these forms renders the whole proceeding abortive. The appraisal certificate recites that the appraisers were “duly appointed,” and the recitals in the referee’s order endorsed thereon as well as in his order made five days later show that the appraisal was approved. More than that, they show that the debtors themselves agreed that it was correct. I suppose the presumption of regularity attends the conduct of bankruptcy proceedings as well as trials generally, and without at all doing violence to the record before us we may presume that the appraisers were regularly appointed and sworn, even that Form No. 13 was meticulously followed. It appears…