149 F. 636 (8th Cir. 1906), 2,406, Edelstein v. United States

Docket Nº:2,406.
Citation:149 F. 636
Case Date:November 30, 1906
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 636

149 F. 636 (8th Cir. 1906)




No. 2,406.

United States Court of Appeals, Eighth Circuit.

November 30, 1906

Page 637

Daniel W. Lawler, for plaintiff in error.

Chas. C. Houpt, for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

ADAMS, Circuit Judge, after stating the case as above, .

Counsel for defendant urges several reasons for a reversal of the judgment: (1) Because the District Court, as a court of bankruptcy, had no jurisdiction of the proceedings in which defendant was charged to have made the false oath. (2) Because the testimony given by defendant before the referee could not be a 'false oath,' within the meaning of the act. (3) Because the testimony given by him afforded no ground for the prosecution, by reason of the immunity provided

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for in section 7, subd. 9, of the act. Act July 1, 1898, c. 541, 30 Stat. 548 (U.S. Comp. St. 1901, p. 3425).

The first contention is presented in a double aspect: First, that it does not appear from the petition upon which defendant was adjudicated a bankrupt, which was offered in evidence by the government and received against the objection and exception of defendant, that he was not 'a wage earner or a person engaged chiefly in farming or the tillage of the soil'; and, second, that the indictment fails to aver that defendant was not within the class just mentioned, and for that reason failed to charge a criminal offense.

The petition of the creditors was in the approved form, except that it failed to ave that the bankrupts were not wage earners or persons engaged chiefly in farming or the tillage of the soil, as required by section 4 of the bankruptcy act as amended. For want of such averment, the petition was demurrable, and if timely objection had been made to it no adjudication could have been had upon it. C.C. taft Co. v. Century Savings Bank, 72 C.C.A. 671, 141 F. 369; In re Plymouth Cordage Co., 68 C.C.A. 434, 135 F. 1000; Beach v. Macon Grocery Co., 57 C.C.A. 150, 120 F. 736; In re Taylor, 42 C.C.A. 1, 102 F. 728. But after a hearing was had, an adjudication of bankruptcy made, and the bankrupt, recognizing its validity, had applied for a discharge from his debts, can it be said that such an adjudication, when no person interested has questioned its validity by appeal or otherwise, is void upon collateral attack? We think not. It is true the District Court as a court of bankruptcy is one of limited jurisdiction-- that is, limited in respect of the subjects over which it may exercise jurisdiction-- but it is unlimited in respect of its power over proceedings in bankruptcy, specifically made subject to its jurisdiction by section 2 of the act. When judgments are rendered by that court upon questions arising in such proceedings, they possess all the incidents and qualities of finality and conclusiveness appertaining to judgments of courts of general jurisdiction. Its judgments, unless reversed on appeal or writ of error, import absolute verity.

Chief Justice Marshall, early, in the case of Kempe's Lessee v. Kennedy, 5 Cranch, 173, 185, 3 L.Ed. 70, speaking for the Supreme Court of the United States, said:

'The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities, which may be be totally disregarded.'

In McCormick v. Sullivant, 10 Wheat. 199, 6 L.Ed. 300, the Supreme Court, speaking by Mr. Justice Washington, in answer to the argument that the proceedings were void because jurisdiction of the court was not shown, said:

'(The argument) proceeds upon an incorrect view of the character and jurisdiction of the inferior court of the United States. They are all of limited jurisdiction; but they are not on that account inferior courts, in the technical sense of those words, whose judgments, taken alone, are to be disregarded. If the jurisdiction be not alleged in the proceedings, their judgments and decrees are erroneous, and may, upon a writ of error or appeal, be reversed for that cause. But they are not absolute nullities.'

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In Grignon's Lessee v. Astor, 2 How. 318, 341, 11 L.Ed. 283, the Supreme Court, speaking by Mr. Justice Baldwin, said:

'These principles are settled as to all courts of record which have an original general jurisdiction over any particular subjects; they are not courts of special or limited jurisdiction; they are not inferior courts, in the technical sense of the term, because an appeal lies from their decision. * * * They have power to render final judgments and decrees which bind the persons and things before them conclusively, in criminal as well as civil causes, unless revised on error or by appeal.'

In Dowell v. Applegate, 152 U.S. 327, 340, 14 Sup.Ct. 611, 616, 38 L.Ed. 463, the Supreme Court, speaking by Mr. Justice Harlan, after reviewing the authorities, observed as follows:

'These cases established the doctrine that, although the presumption in every stage of a cause in a Circuit Court of the United States is that the court is without jurisdiction, unless the contrary affirmatively appears from the record (Bors v. Preston, 111 U.S. 252, 255, 4 Sup.Ct. 407, 28 L.Ed. 419, and the authorities there cited), yet if such jurisdiction does not so appear, the judgment or final decree cannot, for that reason, be collaterally attacked, or treated as a nullity.'

See, to the same effect, Freeman on Judgments, vol. 1, Sec. 124; In re Columbia Real Estate Co. (D.C.) 101 F. 965, 970.

In view of the principles so announced, it must be held that it was the duty of the court of bankruptcy primarily to find the facts, and determine therefrom, as a matter of law, whether it had jurisdiction over the proceeding before it. It performed its duty, reached the conclusion that it had, and pronounced judgment accordingly. Neither the bankrupts nor any other interested party saw fit to challenge the judgment by appeal or otherwise. It therefore became final and conclusive, and is not subject to collateral attack, as attempted in this case.

It follows that neither the demurrer to the indictment nor the objection to the introduction of the creditors' petition were well taken, and that the trial court did not err in overruling them.

Do the words 'false oath,' as employed in section 29 of the act, comprehend false swearing by the bankrupt in a proceeding before the court to investigate the truth of specifications filed against his discharge? The section, so far as it is necessary for our present inquiry, reads as follows:

'A person shall be punished by imprisonment for a period not to exceed two years upon the conviction of the offense of having knowingly and fraudulently * * * (2) made a false oath or account in or in relation to any proceeding in bankruptcy.'

Section 2, subd. 12, of the act devolves the duty 'to discharge or refuse to discharge bankrupts' upon courts of bankruptcy as one of the 'bankruptcy proceedings' of which original jurisdiction was conferred upon them. Section 30 of the act authorizes the Supreme Court of the United States to prescribe 'all necessary rules, forms and orders as to procedure and for carrying this act into force and effect. ' Pursuant to the provisions of that section, general order No. 12 was adopted by the Supreme Court, which is as follows:

'Applications for a discharge * * * shall be heard and decided by the judge, but he may refer such an application or any specified issue arising thereon to the referee to ascertain and report the facts.'

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Upon the filing of the petition for discharge and the specifications of objection thereto, the court of bankruptcy, acting by authority of the general order just referred to, ordered:

'That said matter (the specifications of objection) be, and the same is hereby, referred to Michael Doran, Jr., one of the referees in bankruptcy of said court, to take the evidence of the parties in interest with respect to the material matters set forth in said specifications, which are attached to this order, and report such evidence to the court, together with written findings thereon and recommendations as to whether discharge should be granted or refused said bankrupts.'

By that order the referee was required to take the evidence of the parties in interest. That necessarily included the bankrupt, Edelstein, for no one had a greater interest in the pending inquiry than he.

From the foregoing, it appears that the examination of the bankrupt, Edelstein, was authorized by law, and appropriate orders of court made pursuant thereto. Obedient to the order of court, the bankrupt appeared before the referee, was sworn by him, as authorized by section 20, to tell the truth, and gave testimony on his own behalf on the pending issue. In giving that testimony it is charged that he made a false oath, or swore falsely, within the meaning of section 29, supra.

It is contended by defendant's counsel that section 7, subd. 9, which requires a bankrupt when present at the first meeting of his creditors, and at such other times as the court shall order, 'to submit to an examination,' etc., does not necessarily contemplate that the examination should be under oath. We think this is a misconception of the provisions of the act. The word 'examination,' used in connection with legal proceedings, is commonly understood to mean an examination under oath or 'affirmation,' which by the provisions of the bankruptcy act (section 1, subd. 17) is included in the word 'oath.' In view of this common understanding, it is...

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