Davidson v. Wilson
| Decision Date | 01 February 1923 |
| Docket Number | 2911. |
| Parties | DAVIDSON v. WILSON et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Edgar W. Lank, of Philadelphia, Pa., for plaintiff in error.
Robert V. Bolger, Asst. U.S. Atty., and Alfred Aarons, both of Philadelphia, Pa., for defendants in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In a proceeding before a referee in bankruptcy, Isaac Davidson father of the bankrupt, was being examined with reference to what he had done with about $18,000 he had received from his son shortly before his bankruptcy. The witness refused absolutely to answer all questions asked him thus violating Section 41a of the Bankruptcy Act (30 Stat 544, Comp. St. Sec. 9625) which provides that:
'A person shall not, in proceedings before a referee, * * * refuse to be examined according to law.'
The referee found the witness in contempt and pursuant to Section 41b of the act (which prescribes the procedure for violations of the provisions of Section 41a) certified his finding to the district judge. At the hearing on the certificate the witness showed contrition. His counsel represented that, if given another opportunity, he would answer all questions asked him. Thinking that an admonition was all that was necessary, the learned judge permitted the witness to remain at liberty under an order, however, that he reappear before the referee on a day named 'and answer fully all questions that may be propounded to him. ' At the second hearing, the witness, instead of purging himself of contempt, persisted in his previous course. He was perhaps less defiant than before but quite as positive in his refusal to answer questions. He endeavored to excuse his refusal by demanding the books of the bankrupt for three or four days for the purpose of refreshing his memory. The books had been impounded. The referee, being acquainted with the affairs of the bankrupt, deemed it unwise to release the books from custody but offered them to the witness for inspection. In number and size they were such as would admit of full examination in a few minutes. The witness did not accept the offer but remained steadfast in his refusal to answer questions. Again the referee found the witness in contempt and certified his finding together with the testimony to the district judge. At the hearing on the second certificate the learned judge, regarding the conduct of the witness as openly defiant of his order, adjudged him guilty of contempt and sentenced him to imprisonment for a term of three months. The witness sued out this writ of error. Maintaining that the sentence is criminal, he challenges its validity on the ground that the proceedings were for civil contempt, not for criminal; that the punishment was remedial, not punitive; and that the sentence was imposed for the profit of the trustee of the bankrupt estate, a private party, not to vindicate the authority of the court. To sustain these contentions the plaintiff in error (to whom we shall continue to refer as the witness) cites and relies upon Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A. (N.S.) 874, wherein the Supreme Court distinguished civil and criminal contempts mainly by the character and purpose of the punishment imposed. 221 U.S. 418, 441, 442, 31 Sup.Ct. 492, 55 L.Ed. 797, 34 L.R.A. (N.S.) 874. He also cites and relies upon In re Kahn, 204 F. 581, 123 C.C.A. 107, in which the Circuit Court of Appeals for the Second Circuit followed the law of the Gompers case and extended it to bankruptcy proceedings.
This court also has had occasion to apply the law of the Gompers case to proceedings in bankruptcy. This it has done with opposite results in the Matter of Kaplan Bros., 213 F. 753, 130 C.C.A. 267, certiorari denied, see Kaplan v. Leech, Trustee, 234 U.S. 765, 34 Sup.Ct. 998, 58 L.Ed. 1582; Biderman v. Cooper (C.C.A.) 273 F. 683. In the latter case the contempt proceedings were instituted by a trustee in bankruptcy for the benefit of the bankrupt estate and the matter brought before the district judge was not 'any of the things forbidden by this section,' that is, by Section 41a of the Bankruptcy Act, and was not brought before him on certificate of the referee as provided by Section 41b of the act. There we held the contempt proceedings civil and punishment criminal and, in consequence, unlawful.
In the instant case, however, the matter complained of, namely, the refusal of the witness to be examined according to law, was distinctly one of the things forbidden by the section. The matter was officially brought before the district judge by the referee on certificate as provided by ...
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