Brooks v. Collins
| Decision Date | 11 December 1928 |
| Docket Number | No. 5350.,5350. |
| Citation | 29 F.2d 732 |
| Parties | BROOKS v. COLLINS et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. M. McCormick, of Dallas, Tex. (B. M. McMahan, of Greenville, Tex., and W. C. Gowan, of Dallas, Tex., on the brief), for petitioner.
L. A. Clark, H. L. Carpenter, and R. R. Neyland, all of Greenville, Tex. (M. W. Neyland, of Greenville, Tex., on the brief), for respondents.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
This is a petition for allowance of an appeal from an interlocutory order of the District Court permitting specifications of opposition to the discharge of the bankrupt to be filed nunc pro tunc more than 10 days after the return day fixed by the referee for the entering of appearances. It is not disputed that the court had authority to enter the order nunc pro tunc in a proper case, but it is contended that good cause was not shown why the specifications were not filed in time, and therefore it was an abuse of discretion to permit the filing.
It appears that the bankrupt filed his petition for a discharge, and under a standing rule of the court it was immediately referred to the referee. Respondents entered their appearance in opposition to the discharge on April 12, 1928, the day fixed by the referee. Thereafter the specifications were prepared and mailed to the referee, and were delivered to him on April 20th. However, the attorney for respondents had estimated the necessary postage at 8 cents, which was insufficient by 2 cents, and the referee therefore declined to pay the postage due and receive the letter, which was returned to the sender by the Post Office Department. It was received by him on April 23, 1928. The specifications of opposition were then returned to the referee, and were filed by him as of date of April 25, 1928, which was too late under the rules. On application to the court, after a hearing on May 10, 1928, an order was entered permitting the filing of the specifications nunc pro tunc as of April 20, 1928.
In a matter of this kind, when the order is not of a final nature, and could be reviewed on appeal from the judgment of the court on the application for discharge, we would hesitate to substitute our discretion for that of the District Judge, and would do so only in a very clear case; but, beyond that, no abuse of discretion is shown. The creditor was not guilty of negligence in mailing the specifications to the referee, and the exercise of the slightest courtesy...
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In re Taub
...information and belief are well stated in Manson v. Inge, 4 Cir., 13 F.2d 567, 47 A.L.R. 635. We agree with them. See, also, Brooks v. Collins, 5 Cir., 29 F.2d 732. Finally, we come to the sufficiency of the proof. The mere omission of property from the schedules, or the failure to include ......
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In re Biro, 74.
...specifications were bad because verified only by the creditor's attorney upon information and belief cannot be sustained. Brooks v. Collins et al., 5 Cir., 29 F.2d 732; In re Perelstine, D.C., 15 F.2d 64. See also, New General Order No. 38, 11 U.S.C.A. following section The second amended s......