In re Goodrich

• Decision Date: 02 December 1910
• Docket Number: 884 (original).
• Citation: 184 F. 5
• Parties: In re GOODRICH.
• Court: U.S. Court of Appeals — First Circuit

184 F. 5

In re GOODRICH.

No. 884 (original).

United States Court of Appeals, First Circuit.

December 2, 1910

J Butler Studley (Brandeis, Dunbar & Nutter, on the brief), for petitioner.

Ephraim Fred Aldrich, for respondent.

Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.

PUTNAM Circuit Judge.

This is a petition to revise an order of the District Court, in Bankruptcy, as follows:

'At Boston, in said district, on the twenty-sixth day of May A.D. 1910, upon the motion of E. Fred Aldrich, Esq. trustee, that the bankrupt be adjudged in contempt for failure to comply with the order of the referee, made on the 18th day of January, 1910, that the bankrupt forthwith turn over to the trustee the last ledger of the Goodrich Polish Company, meaning by that the ledger which contains the transactions of the Goodrich Polish Company from the close of ledger B, now in the hands of the trustee, up to and after the fire:

'Now, therefore, upon a full hearing had, and after hearing arguments of J. Butler Studley, Esq., of counsel for the bankrupt, and E. Fred Aldrich, Esq., trustee, and, after due consideration of the same,

'It is hereby ordered and decreed that the bankrupt is hereby adjudged in contempt of this court, and he is hereby ordered to turn over to the trustee in bankruptcy the book described in the referee's order within 15 days.

'And it is further ordered that in case of his failure so to do he stand committed to the marshal of this district, to be imprisoned until he obeys the order of this court, or is otherwise discharged by the process of law, or until the further order of this court.'

This order followed an order by the referee as follows:

'It is therefore ordered that the bankrupt forthwith turn over to E. F. Aldrich, Esq., his trustee in bankruptcy, the last ledger of the Goodrich Polish Company, meaning by that the ledger which contains the transactions of the Goodrich Polish Company from the close of ledger B, now in the hands of the trustee, up to and after the fire.'

Intervening was the following order, entered April 27, 1910, and which was duly served:

'Upon consideration of the certificate of George W. Stetson, referee in bankruptcy in the above-entitled case, dated February 23, A.D. 1910, bearing upon the contempt of the bankrupt in failing to comply with one of the orders of the referee aforesaid, to wit, to turn over to his trustee in bankruptcy the last ledger of the Goodrich Polish Company, meaning by that the ledger which contains the transactions of the Goodrich Polish Company from the close of ledger B (now in the hands of the trustee) up to and after a fire which was mentioned in the order of the referee, and on motion made in open court of E. F. Aldrich, trustee in bankruptcy in the above-entitled case,

'It is ordered that the said William H. Goodrich appear at this court as a court of bankruptcy to be holden at Boston, in the district aforesaid, on the twenty-seventh day of April, A.D. 1910, at 10 o'clock in the forenoon, and show cause, if any there be, why he, the bankrupt, should not be adjudged in contempt of this court, and.

'It is further ordered that a copy of this order of notice be served on said William H. Goodrich by delivering the same to him personally, or by leaving the same at his last and usual place of abode in Campello, a part of Brockton, in said district, on or before the twenty-sixth day of April, 1910.' Whether the proceeding before us should have been by a writ of error, as in the ordinary course of a proceeding for criminal contempt, or whether by a revisory petition, was left by us in Re Cole, 163 F. 180, 183, 90 C.C.A. 50, 53 (23 L.R.A. (N.S.) 255), in an opinion passed down February 5, 1908, an open question. In reference thereto we used the following language:

'On the whole, we accept for this case the position that the proceeding in the District Court was by virtue of the statutory provision expressly authorizing it to compel obedience to its orders; that the way for any party dissatisfied with the conclusion of that court to reach us was by a petition for review; that on such petition we can revise any question of law as to which we may justly infer that the District Court reached a conclusion, whether formally expressed or not, and whether or not formally presented; and that, to that end, we may search, not only the record in that court, but also its opinions.'

This seems to be consonant with the language of section 41b of the act of July 1, 1898 (chapter 541, 30 Stat. 556 (U.S. Comp. St. 1901, p. 3437)), referring to subject-matters like that now before us:

'The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court.'

This question of the method of procedure we reserve, however, for further consideration on some future occasion if it becomes necessary, as no point in reference thereto is now made. Whichever the method, our holding that the order of the referee is of purely a civil character, and is governed by the rules as to evidence in civil proceedings, while an order like that entered here is of a criminal nature and is governed in large part by the rules relating to criminal proceedings, still stands.

A careful examination of the record shows that the learned judge of the District Court faithfully followed all the rules laid down by us in Re Cole, according to our opinions passed down on February 16, 1906 (144 F. 392, 75 C.C.A. 330), and on February 5, 1908 (163 F. 180, 90 C.C.A. 50, 23 L.R.A. (N.S.) 255). If the provision of the statute we have quoted has any effect here, it has effect only on the question whether this proceeding before us should be on a writ of error or a petition to revise. It leaves the rules of the common law applicable to a proceeding for this contempt in whatever way it arises. In Re Cole, as the case stood on February 16, 1906, there had been no preliminary order as in the case at bar; and here the notice and the order thereof for service which we have quoted, entered on April 27, 1910, form a sufficient pleading on the part of the promoter, according to the general practice pointed out in Re Cole. Perhaps with the respondent no pleading was necessary; but it is often advantageous to set out the defense in a definite manner, so that the court may pass on it intelligently with a view of bringing the issues clearly before the appellate tribunal. This, of course, should not be allowed to permit unnecessarily one set of pleadings after another, or in any way to cause protracted delay.

No complaint can be made in the present case of the pleadings on either side; and, in all respects, everything required in Re Cole has been fully satisfied. We find, therefore, only two errors suggested in the record, neither of which was especially anticipated by In re Cole, one of which needs only to be noticed, and the other will require further proceedings.

The first is the objection made on account of the learned judge of the District Court making use of the prior proceedings in the bankruptcy litigation. We understand that this included the full referee's report and order, the bankrupt's petition and schedules, and various other matters of record, and especially proceedings upon a claim offered by Walter E. Goodrich. The learned judge stated that he had referred to these matters; and it appears from the record that he informed the counsel for the bankrupt of that fact at the final hearing. The reference to the proof offered by Walter E. Goodrich seems to have been for the purpose of establishing the materiality of the ledger in question; and probably in the mind of the learned judge it was admissible for that purpose, although we do not understand that it rested on the trustee, in proceedings of this character, to show that the book was material, because the trustee was entitled by statute to all the account books of the bankrupt. That account books stand in the same category with any 'document,' and are covered by that word, is determined by the first section of the act of July, 1898. In Re Cole we give a very broad margin for an examination of the prior proceedings in the same case for the reasons there pointed out. Of course, there is always a probability of some limitation; but we have not examined this here, because it is very plain that no consideration which the court might have given to prior proceedings was prejudicial to the bankrupt with reference to this appeal.

Precisely how and at what time the court should receive information of the character objected to is ordinarily for the court itself to determine, provided only that it gives parties concerned a notice of what it regards as evidence, as was done in the present case. Although the notice was given at the close of the proceedings, it must be assumed that the District Court would have reopened the hearing on that particular point if reason therefor had appeared; while, of course, it also contributes to orderly proceedings in litigation, and to enabling the appellate tribunal to understand the rights of the parties if all evidence is formally offered in such a way that its materiality may be ascertained and ruled on at the time it is offered.

There is much in the record in regard to the other objection, and much presented by counsel in reference to...