137 F.2d 84 (8th Cir. 1943), 12395, Dunsdon v. Federal Land Bank of St. Paul

Docket Nº:12395.
Citation:137 F.2d 84
Case Date:June 29, 1943
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 84

137 F.2d 84 (8th Cir. 1943)




No. 12395.

United States Court of Appeals, Eighth Circuit.

June 29, 1943

Page 85

S. E. Ellsworth, of Jamestown, N.D., and William Lemke, of Fargo, N.D. (Elmer McClain, of Lima, Ohio, on the brief), for appellant.

John F. Lord, of St. Paul, Minn. (Robert J. Barry and A. L. Quilling, both of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The question is whether the district judge erred in modifying an order of the conciliation commissioner, in a proceeding under section 75, subsection s, of the Bankruptcy Act, 49 Stat. 942, 11 U.S.C.A. § 203, sub. s, changing the value fixed upon the farmer-debtor's land from $2, 880 to $4, 800.

We have previously declared that, under Order 47, General Orders in Bankruptcy, 11 U.S.C.A.following section 53, it is the duty of the district judge to accept the conciliation commissioner's finding as to value, based upon a hearing, unless 'he is soundly convinced from the proceedings before him that it is clearly erroneous. ' Equitable Life Assur. Soc. of United States v. Carmody, 8 Cir., 131 F.2d 318, 323. Again, in Rait v. Federal Land Bank of St. Paul, 8 Cir., 135 F.2d 447, we emphasized that the value duly fixed upon a farmer-debtor's property, after a hearing before the conciliation commissioner, like any finding of a referee in bankruptcy, should not lightly be disturbed, and that the district judge ought to proceed with a sound and conscientious restraint, before overturning it on review.

We said also, however, in the latter case, 135 F.2d at page 450, that, 'where, from a review of the record and from such other proceedings as may be had before him, the district judge, on the basis of the principles referred to, is clearly convinced that the conciliation commissioner in such a situation has acted arbitrarily and without proper regard for the evidence, or that he has otherwise plainly and prejudicially erred, there can be no question as to his right to modify the conciliation commissioner's report or order, or to set it aside and receive further evidence, or to recommit the matter to the conciliation commissioner with instructions.'

In the Rait case, the record showed, by the conciliation commissioner's own statements, that he had arbitrarily ignored...

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