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PERRY v. BAUMANN et al.

No. 10050.

Circuit Court of Appeals, Ninth Circuit.

June 8, 1942.

Arthur W. Green and Grainger & Hunt, all of Los Angeles, Cal., for appellant.

Thomas F. McCue, of Los Angeles, Cal., for appellee Anna Baumann.

William J. Clark, of Los Angeles, Cal., for appellee Maud E. Lane.

Before GARRECHT, MATHEWS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

On September 4, 1941, we reversed an order dismissing a proceeding brought by appellant, William H. Perry, under § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, and remanded the case to the District Court with directions to find the facts specially, state separately its conclusions of law, and thereupon enter the appropriate judgment.1

Appellant, upon remand of the case, requested a retrial thereof.. The request was refused, and properly so, as our mandate did not direct or contemplate a retrial. Complying with our mandate, the court found the facts, stated its conclusions, and entered a judgment dismissing the proceeding. From that judgment this appeal is prosecuted.

The provisions of § 75 apply to farmers. Subsection (r) of § 75 defines the term “farmer” as including “not only an individual who is primarily bona fide personally engaged in producing products of the soil, but also any individual who is primarily bona fide personally engaged in dairy farming, the production of poultry or livestock, or the production of poultry products or livestock products in their unmanu-factured state, or the principal part of whose income is derived from any one ■ or more of the foregoing operations.”

Appellant’s petition alleged that appellant was “primarily bona fide personally engaged in producing products of the soil, and that the principal part of his income [was] derived from said farming operations”— that is to say, from producing products of the soil.2 Appellees (creditors of appellant) denied these allegations and moved, therefore, to dismiss the proceeding.

The trial court found that appellant was not primarily bona fide personally engaged in any of the operations mentioned in subsection (r), and that the principal part of his income was not derived from any one or more of said operations. These findings are amply supported by evidence and will not be disturbed. We conclude, as did the trial court, that appellant was not entitled to maintain this proceeding.

Judgment affirmed.

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