Boyd v. Glucklich
| Decision Date | 14 April 1902 |
| Docket Number | 1,622. |
| Citation | 116 F. 131 |
| Parties | BOYD v. GLUCKLICH. |
| Court | U.S. Court of Appeals — Eighth Circuit |
N. T Guernsey and H. G. Giddings (W. H. Winegar, on the brief) for appellant.
John Shortley (L. V. Harpel, on the brief), for appellee.
At some time not disclosed by the record, Morris Glucklich was adjudged a bankrupt by the United States district court Southern district of Iowa, General division. There is some confusion of dates in the record, which does not materially affect the case. From one part of the record it appears that on the 23d day of January, 1901, H. E. Boyd, the trustee in bankruptcy, filed with M. J. Hallinan, referee in bankruptcy a petition requesting the referee to make an order requiring the bankrupt and others to appear before him 'forthwith for examination.' On the presentation of the petition the referee made an order as requested, and the bankrupt forthwith appeared before the referee and was examined; and pending the examination, or at its close, and while the first meeting of the bankrupt's creditors was still in session, the trustee filed before the referee the following application:
'Comes now H. E. Boyd, the duly elected, qualified, and acting trustee in the foregoing proceedings, and shows to the court that it is apparent from the examination of said bankrupt, Morris Glucklich, at the first meeting of creditors herein, which meeting is now in session, that said bankrupt has now in his possession and under his control money, goods, and chattels, the property of said estate not turned over to this trustee, as follows:
Cash on hand shown by schedule ............
$ 140 00
Cash in pocket ................................
150 00
Cash with wife ................................
400 00
Cash claimed with Adolph Levy ...............
1,200 00
Cash claimed with niece, Regena ...............
225 00
Deficiency in stock ........................
16,000 00
Expenses credited on cash book, not paid ....
1,000 00
Expenses credited twice paid by check .........
571 26
Interest paid on homestead mortgage ............
Cash paid for exempt insurance .................
----------
Total cash on hand ..................
$19,834 66
'It also appears from said examination that said bankrupt had in his possession, as the property of said estate, and not exempt, 25 doz. cans of canned goods, and policy of insurance in the Equitable Life Insurance Company, as shown by schedule.
'Wherefore your trustee prays that an order be entered herein at this time requiring said bankrupt to turn over said money, goods, and chattels above described to this trustee within five days.'
The record shows that this application was filed at 11:30 a.m., and the record recites that on the motion of the bankrupt the hearing on the application was continued until 2:20 p.m. on the same day, and on the same day, and without any further hearing or examination of the bankrupt or other witnesses, the referee made an order to the effect following:
'Whereas, H. E. Boyd, trustee, did on the 24th day of January, 1901, present his petition to this court, praying, for reasons therein set forth, that the bankrupt, Morris Glucklich, be required to turn over to him certain money and property now in his control, belonging to his estate: Now, therefore, upon reading the application of H. E. Boyd, trustee, and after a full and complete examination of the bankrupt, being present in person and by counsel during all of said examination, and upon hearing and upon the evidence, I find that the bankrupt has failed to turn over to the trustee money and property in his possession and control as follows, to wit:
Cash on hand as shown by schedule ........
$ 140 00
Cash in pocket ................................
Cash with wife ...............................
400 00
Cash claimed with Adolph Levy ..............
1,200 00
Cash claimed with niece, Regena ..............
225 00
Deficiency in stock .......................
16,000 00
Expenses credited on cash book not paid ....
1,000 00
Expenses credited twice paid by check ........
571 26
Interest paid on homestead mortgage ...........
Cash paid for exempt insurance ................
----------
Total cash on hand .................
$19,766 41
'It also appears from said examination that said bankrupt has in his possession, as the property of said estate, and not exempt, 25 dozen cans of canned goods, and policy of insurance in the Equitable Life Insurance Company, as shown by schedule.
'It is therefore ordered that the bankrupt turn over said property and money within five days to said trustee, H. E. Boyd, and that a copy of the order be served forthwith on said bankrupt.
Thereupon the bankrupt filed a petition for a review by the district court of the proceedings before the referee, and upon hearing the petition that court made the following order:
'The petition for review of the order of the referee having been fully considered, it is ordered that the order of the referee be, and the same is, modified, and the order is as follows, viz.:
'The bankrupt will turn and pay over to H. E. Boyd, the trustee, within ten days from this date:
1. Cash on hand as shown by schedule ....
$140 00
2. Cash in pocket .........................
3. Cash with wife ........................
200 00
4. Interest paid on homestead mortgage ....
5. Cash paid for exempt insurance .........
-------
Making a total of .................
$570 15
'And said bankrupt will also turn over to said trustee within ten days from this date said three hundred cans of canned goods, or their fair value. And if he fails to obey any part of this order, he will be committed to the jail of Polk county, Iowa, until he fully complies with this order.
'Done in open court at Des Moines, Iowa, May 23, 1901.
From this order the trustee appealed to this court.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
CALDWELL Circuit Judge, after stating the case as above, .
From the record before us it is apparent that the order of the referee was based on the general examination of the bankrupt at the first meeting of his creditors, and while that meeting was still in session. The record discloses that the examination was of that general character contemplated by section 7 of the bankrupt act, which provides that, when present at the first meeting of his creditors, the bankrupt shall 'submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate. ' No petition had been filed by the trustee claiming that the bankrupt had money or property in his possession or under his control which he should turn over to the trustee. The examination was lengthy and desultory. Immediately upon its close the trustee presented for the first time the list of moneys and property which he claimed the bankrupt should turn over to him, accompanied by a prayer 'that the order be entered herein at this time requiring' the bankrupt to turn over the money and property mentioned. This application was filed at 11:30 a.m. At the request of the bankrupt its consideration was postponed until 2:20 p.m. of the same day, when, without any answer being filed by the bankrupt, or an issue otherwise raised, and without any further examination of the bankrupt or hearing any further evidence, the referee entered an order substantially as prayed for by the trustee.
It will be observed that the application of the trustee was not for an order on the bankrupt to show cause, upon reasonable notice, why he should not be required to turn over to the trustee the money and property mentioned in the application, but was for an immediate and unconditional order to be then made, based on the general and desultory examination of the bankrupt which had just been concluded. We think it apparent from the record that the referee supposed it to be his duty to take up and consider the trustee's motion, in the language of that motion, 'at this time,' and without giving the bankrupt an opportunity to be further examined, or to introduce evidence touching the particular items of money and property mentioned, and that the bankrupt and his counsel so understood it.
Dispatch in judicial proceedings is commendable, but, in proceedings involving the liberty of a citizen, he has a right not only to be informed of the precise claim against him, but, after receiving that information, he has a right to a reasonable time to prepare his answer and present his proofs, and lastly, to be heard by counsel on the law and facts of the case. While proceedings in bankruptcy may be summary, they should not be too summary; in other lords, they should not be so summary as to deprive the bankrupt of those fundamental rights and privileges that belong to every citizen, among which are the right to be advised of the demand made upon him, and the right, after being so advised, to have a reasonable time to prepare his defense and produce his witnesses. The bankrupt act does not do away with these rights, and no citizen forfeits them by being adjudged a bankrupt. The bankrupt act contemplates that proceedings in bankruptcy shall go forward with all reasonable dispatch compatible with the due and orderly administration of justice and a proper regard for the fundamental rights of the citizen. Construing the proceedings before the referee as we do,...
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