Kirsner v. Taliaferro

• Decision Date: 21 December 1912
• Docket Number: 1,132.,1,122
• Citation: 202 F. 51
• Parties: KIRSNER v. TALIAFERRO et al. (two cases).
• Court: U.S. Court of Appeals — Fourth Circuit

202 F. 51

KIRSNER v. TALIAFERRO et al. (two cases).

Nos. 1,122, 1,132.

United States Court of Appeals, Fourth Circuit.

December 21, 1912

Thomas H. Willcox, of Norfolk, Va. (Willcox, Cooke & Willcox, of Norfolk, Va., and Dave B. Kirsner, of Baltimore, Md., on the brief), for petitioner and appellant.

L. A McMurran and W. B. Colonna, both of Newport News, Va. (Nelms Colonna & McMurran, of Newport News, Va., on the brief), for respondents and appellees.

Before GOFF and PRITCHARD, Circuit Judges, and ROSE, District Judge.

ROSE District Judge.

On December 27, 1911, Isaac Kirsner was adjudicated a voluntary bankrupt. Trustees were duly elected. On February 23, 1912 they filed with the referee a petition alleging that the bankrupt was in possession of property belonging to his estate, and praying that he might be required to turn it over to them. On March 8th he answered. He said that he had delivered every dollar's worth of property to his trustees. A hearing was thereupon had before the referee. The trustees relied upon the testimony given by the bankrupt at his examination by the creditors, and upon the books and papers which he had given the trustees. He was examined by his counsel on his own behalf in opposition to the granting of the trustees' petition. On May 9, 1912, the referee found that there had been traced to the possession of the bankrupt goods and merchandise of the kind and sort carried by and dealt in by him in his retail stores of an invoice or wholesale value of $4,166.54, and that the bankrupt had failed to account for the same. He was ordered within 15 days to deliver to the trustees goods and merchandise of the character and class heretofore carried by him, being dry goods, notions, and ladies' ready-made clothing to the value of at least $4,166.54 wholesale price.

On the day upon which the referee made the above findings and passed the order recited, both parties filed petitions for review. The trustees complained that the evidence showed that the bankrupt had withheld from them more goods than the referee had found that he had. The bankrupt said that the record did not show that he had withheld any. Both parties had their hearing before the learned judge of the District Court. He overruled both petitions for review. He approved and confirmed the order of the referee. He ordered that the bankrupt should on or before the 17th of July, 1912, comply with the referee's order, or, in the alternative, should pay to the trustees the sum of $3,000 in cash, which the court fixed as the equivalent cash value of the goods, which the order required the bankrupt to turn over. If he did not deliver the goods or pay the money by the 17th of July, he was further ordered to show cause on that day why he should not be attached and committed for contempt until he did so. On the last-named day he filed what he called a petition for a rehearing. It would have been more accurately described as a request that the court should reconsider the conclusions to which upon the record it had come. The bankrupt did not say that he wished to offer any new testimony, nor did he in fact then or at any time offer any. He contented himself with saying that the referee, upon the testimony already in the case, had come to an erroneous conclusion. He asserted that at no time since he had been adjudicated a bankrupt had he been possessed of any property of any kind either in merchandise or money, and that he was absolutely penniless. He asked that his petition for rehearing should be treated and considered as an answer to the rule to show cause why he should not be committed for contempt.

On the 18th of July, after argument by counsel, the petition for rehearing was denied. It was adjudged that as a response to the rule it did not show any sufficient cause why the order theretofore made should not be enforced. The court found as a matter of fact that the bankrupt had in his possession and control the goods described in the preceding order, that such goods lawfully belonged to the custody of the trustees, and that the bankrupt had present ability to comply with the order to turn them over to his trustees. He was thereupon committed to the custody of the marshal of the court to be by him held and confined in the city jail of Norfolk until he complied with the order to deliver the goods or their equivalent cash value as ascertained and declared by the court. The order of commitment further recited that as the bankrupt had expressed a desire to appeal to this court, or to seek from this court a revision of the order, he would be admitted to bail pending such appellate proceedings. The bankrupt thereupon both appealed and filed a petition for revision in matter of law.

The trustees have moved to dismiss both the appeal and the petition to revise. At least one of these motions must be granted. Where an appeal may be taken, there is no right to seek revision by petition, nor does an appeal lie in any case in which the order below may be revised above upon petition. These remedies are mutually exclusive. In the Matter of the Petition of Loving, Trustee, 224 U.S. 183, 32 Sup.Ct. 446, 56 L.Ed. 725; Adams v. Deckers Valley Lumber Co., 202 F. 48, decided by this court at this term.

Quite clearly no appeal will lie in this case under the provisions of section 25a. Whatever else the order below may be claimed to be, it is not a judgment adjudging or refusing to adjudge a defendant a bankrupt, nor a judgment granting or denying a discharge, nor is it a judgment allowing or rejecting a debt or claim of $500 or over. It is not appealable under the provisions of section 24a unless it was passed in a controversy arising in bankruptcy proceedings as distinguished from a mere proceeding in bankruptcy. Tefft, Weller & Co. v. Munsuri, 222 U.S. 114, 32 Sup.Ct. 67, 56 L.Ed. 118. If the question determined by the order of the court below arose between the bankrupt and his creditors and was of an administrative character, it is not appealable under section 24a. In re Mueller, 135 F. 711, 68 C.C.A. 349, cited and affirmed by the Supreme Court. In the Matter of Loving, trustee, supra. It is a question between the bankrupt and his creditors. It is within the administrative and summary jurisdiction of the court. Mueller v. Nugent, 184 U.S. 1, 22 Sup.Ct. 269, 46 L.Ed. 405.

So far as our researches go, there have been at least 16 occasions upon which the propriety of an order committing or refusing to commit a bankrupt, or some one holding for the bankrupt, for contempt in failing to obey an order to turn over property to the trustee, has come before Circuit Courts of Appeal. In 13 of these cases the matter has been brought up by petition to revise. Two of these cases were in the First Circuit: In re Cole, 144 F. 392, 75 C.C.A. 330; Id., 163 F. 180, 90 C.C.A. 50, 23 L.R.A. (N.S.) 255; In re Goodrich, 184 F. 5, 106 C.C.A. 207. Three in the Second: In re Schlesinger, 102 F. 117, 42 C.C.A. 207; In re D. Levy & Co., 142 F. 442, 73 C.C.A. 558; In re Stavrahn, 174 F. 330, 98 C.C.A. 202, 20 Ann.Cas. 888. Samel v. Dodd, 142 F. 68, 73 C.C.A. 254. Two in the Sixth: In re Nugent, 105 F. 581, 44 C.C.A. 620; Sinsheimer v. Simonson, 107 F. 898, 47 C.C.A. 51. Four in the Eighth: In re Rosser, 101 F. 562, 41 C.C.A. 497; In re Baum, 169 F. 410, 94 C.C.A. 632; In re Frank, 182 F. 794, 105 C.C.A. 226; In re Meier, 182 F. 799, 105 C.C.A. 231. On three occasions an appeal was taken. One of these was in the Third Circuit: American Trust Co. v. Wallis, 126 F. 464, 61 C.C.A. 342; and two were in the Eighth: Boyd v. Glucklich, 116 F. 131, 53 C.C.A. 451; Schweer v. Brown, 130 F. 328, 64 C.C.A. 574. In no one of the three was there anything said as to the proper method of bringing such an order below to the attention of the appellate tribunal. In the case in the Third Circuit the referee and the court below had found that the bankrupt had not the present ability to turn over the fund in controversy. The Circuit Court of Appeals agreed with them. In that proceeding it made no practical difference to any one whether the appeal was dismissed or the judgment below affirmed. In the Eighth Circuit both methods have been resorted to indifferently. Until the recent decisions of the Supreme Court, the rule in that circuit was that the two remedies were not exclusive of each other, but were concurrent and cumulative. In re McKenzie, 142 F. 383, 73 C.C.A. 483. The question as to when in contempt proceedings an appeal will lie, and when a petition for revision is the proper proceeding, has been discussed by the Circuit Court of Appeals of the Ninth Circuit. Morehouse v. Pacific Hardware & Steel Co., 177 F. 337, 100 C.C.A. 647. In that case certain persons had been enjoined by the court of bankruptcy from prosecuting a suit in a state court. They had violated the injunction. It was sought to have them punished for contempt in the bankruptcy court. They brought the matter to the Circuit Court of Appeals by a petition to revise. In dismissing it, the court said that the order complained of 'was not made with a view to obtain possession of the property of the bankrupt or to enforce a prior order of the court, but it is a criminal proceeding to punish by fine or imprisonment those who have been guilty of violating an injunction of the court. ' The opinion had previously declared that 'proceedings in bankruptcy' include, among other things, 'orders requiring the bankrupt to surrender property of the estate in bankruptcy and orders requiring the bankrupt's voluntary assignee to surrender property of the estate. ' 'These are questions which with a view to the prompt administration and distribution of the assets of the bankrupt the law permits to be summarily disposed of by revision.'

We are therefore of opinion, as...