Beck v. Federal Land Bank of Houston

• Decision Date: 17 January 1945
• Docket Number: No. 12878.,12878.
• Citation: 146 F.2d 623
• Parties: BECK v. FEDERAL LAND BANK OF HOUSTON.
• Court: U.S. Court of Appeals — Eighth Circuit

146 F.2d 623 (1945)

BECK v. FEDERAL LAND BANK OF HOUSTON.

No. 12878.

Circuit Court of Appeals, Eighth Circuit.

January 17, 1945.

C. L. de Renthel, of St. Louis, Mo., for appellant.

Walter R. Brown, of St. Louis, Mo. (H. A. Berry and J. R. Murray, both of Houston, Tex., on the brief), for appellee.

Before GARDNER, WOODROUGH and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The appeal is from an order of the District Court dismissing a petition for agricultural composition and extension under section 75, sub. c, of the Bankruptcy Act, as amended, 54 Stat. 40, 11 U.S.C.A. § 203, sub. c.

The dismissal was made on a motion of appellee, a secured creditor, alleging that appellant was not a farmer within the definition of section 75, sub. r. The order recites that "This cause came on for hearing upon the motion of The Federal Land Bank of Houston, secured creditor, and the same was argued by counsel, and upon consideration thereof It Is Now Ordered that said motion be sustained and this cause be and the same is dismissed."

Appellant charges that the court dismissed the petition without hearing any evidence on whether he was or was not a farmer, and that there thus was not legal basis for the order. The record before us does not show that any evidence was taken upon the issue, nor can the transcript on its face be said to be manifestly incomplete. Appellee has made no legal indication of a record omission, through the filing of a supplemental designation under Rule 75(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, or a subsequent suggestion of diminution. There is no finding of fact by the court under Rule 52(a), implicative of evidence having been received, such as was the situation in Oriole Phonograph Co. v. Kansas City Fabric Products Co., 8 Cir., 34 F.2d 400, 401. Nor does the order contain a recital that the matter was heard on evidence, such as is frequently made, but, on the contrary, it declares that the motion came on for hearing and "the same was argued by counsel" and that "upon consideration thereof" the motion was sustained and the cause dismissed. And, the receipt of evidence is not so implicit in the hearing of motions generally as to require such an inherent assumption against the contents of the present record and the recital in the order, on appellant's direct attack.

Appellee, however, in its brief and argument, disputes the charge that the dismissal was made without hearing any evidence, and asserts that evidence was taken and that appellant has failed to include it in the record. If evidence actually was heard and considered on the motion and not included in the record, the...