Yellow Motor Company of St. Louis v. Broderick

• Decision Date: 07 June 1929
• Docket Number: No. 8257.,8257.
• Citation: 32 F.2d 1022
• Parties: YELLOW MOTOR COMPANY OF ST. LOUIS, Bankrupt, Appellant, v. William BRODERICK et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

32 F.2d 1022 (1929)

YELLOW MOTOR COMPANY OF ST. LOUIS, Bankrupt, Appellant, v. William BRODERICK et al., Appellees.

No. 8257.

Circuit Court of Appeals, Eighth Circuit.

April 29, 1929.

Rehearing Denied June 7, 1929.

Chase Morsey, of St. Louis, Mo., for appellant.

Earl M. Pirkey, of St. Louis, Mo., (Foster H. Brown, of St. Louis, Mo., on the brief), for appellees.

Before STONE, LEWIS, and COTTERAL, Circuit Judges.

LEWIS, Circuit Judge.

Four petitioners representing themselves as creditors of Yellow Motor Company asked the court below to adjudge it bankrupt. It answered that petition admitting some allegations and denying others. Pending adjudication the petitioning creditors asked the court for an order under section 21a of the Bankruptcy Act (11 USCA § 44a) to examine the bankrupt's officers and others on oath before the referee. The order was entered and bankrupt has appealed.

Before this appeal came on for hearing appellant filed in this court its petition for writ of prohibition against the District Judge who made the order appealed from, to restrain its enforcement. We considered that petition and held it to be without merit, in Yellow Motor Co. of St. Louis v. Davis (C. C. A.) 27 F.(2d) 597. We there ruled on the questions that are again presented on this appeal. It is without merit and will be dismissed. Mandate may issue instanter.

STONE, Circuit Judge (concurring).

This is an appeal from an order for examination under section 21a of the Bankruptcy Act and from an order denying motions to set aside and vacate the above order. Shortly after entry of the above orders, these appellants sought to prevent the execution thereof by a petition for prohibition filed in this court. That relief was denied on the ground that the trial court had jurisdiction to make such an order. Yellow Motor Co. v. Davis C. C. A. 27 F.(2d) 597. In that opinion, this court said: "The jurisdiction given by section 21a of the act is the jurisdiction to exercise a wise judicial discretion." Page 598.

One contention here is that such discretion was not shown because it is not stated in the application nor proven nor found by the court that an extraordinary condition existed requiring such examination before adjudication in order to protect or conserve the estate. I see no reason why there should be such allegations in the application for the examination. What took place before the court we do not know from the record. There is no preservation of evidence or representations during argument. This cannot be supplied, on an appeal, by statements of counsel placed in the appeal papers (where they have no proper place) nor by affidavits filed in connection with the appeal. We must consider the matter on the record of what took place in the trial court as shown by the certificate of the clerk thereof to this court and upon such record alone. The entire record below consists of the petition of creditors for an adjudication of bankruptcy, the answer thereto, the petition or application for the examination, the order thereon allowing examination, motions to vacate that order, the order denying those motions and the appeal papers. As said above, allegations of what took place at the hearings which are contained in the appeal papers have no virtue here. They are but ex parte statements and cannot supply the place of the "case stated" to be certified by the clerk. Thus the only matters properly before us are those above which precede the appeal papers. From those it appears that after the order was made, the court entertained motions to vacate. These motions alleged the existence of two receivership proceedings in the ...