Dreyfuss Dry Goods Co. v. Morgan

Decision Date12 December 1927
Docket NumberNo. 5003.,5003.
Citation23 F.2d 54
PartiesDREYFUSS DRY GOODS CO. et al. v. MORGAN.
CourtU.S. Court of Appeals — Fifth Circuit

S. L. Herold, of Shreveport, La. (Thigpen, Herold, Lee & Cousin, of Shreveport, La., on the brief), for appellants.

Jos. D. Barksdale, Otis W. Bullock, and Howard B. Warren, all of Shreveport, La., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

On his voluntary petition the appellee was adjudged bankrupt on October 24, 1925. On December 9, 1925, he filed his petition for a discharge. Pursuant to standing rules of the court, that petition was referred to the referee, who with reference thereto acted as a special master; the rules containing provisions to the effect that the referee shall, at least 30 days prior to the date set for hearing of the petition for discharge, issue to all creditors notice to show cause why the discharge should not be granted, and that any creditor opposing the discharge shall enter in writing an appearance before the referee, or clerk, in opposition to the discharge on the day he is required to show cause, and shall file with the referee within 10 days thereafter, unless the time is enlarged by special order of the judge or the referee, specifications of the grounds of such opposition. On March 11, 1926, the referee made an order setting the hearing on the petition for discharge on April 10, 1926, and gave the notices prescribed by rule.

On April 8, 1926, the appearance of attorneys for appellants for the purpose of opposing the petition was noted by the referee, and on April 21, 1926, appellants filed specifications of grounds of objection to the discharge, which included the following: That the bankrupt, with intent to conceal his financial condition, failed to keep books of account from which said condition could be ascertained; that the bankrupt knowingly and fraudulently made false oaths in specified parts of the schedules filed by him and on his examinations before the referee; and that in such examinations the bankrupt refused to answer material questions approved by the court.

The appellants filed with the referee a motion that the order fixing a date for a hearing on the petition for discharge and the opposition thereto be set aside, on the ground that the judge made no order referring that matter to the referee. The appellee filed with the referee a motion to dismiss the opposition to the discharge, on the ground that the specifications of objections were not filed within the time allowed by the rule. The referee proceeded with the hearing and heard evidence offered by the respective parties. The referee, acting as special master, filed his report on September 25, 1926. That report contained expressions of opinion to the effect that the motion of the appellants that the order fixing a date for a hearing on the petition for a discharge and the opposition thereto be set aside was not well taken, and that the motion of the bankrupt to dismiss the opposition to the discharge should be sustained. That report showed that the referee found that none of the grounds of opposition to the discharge was sustained by the evidence.

On the hearing by the court on that report, the exceptions thereto, and the motions filed by the appellants, the court confirmed that report and decreed the discharge of the bankrupt; the presiding judge stating in his opinion or memorandum that he was of the view that the findings and recommendations of the master are correct and should be affirmed, and that he agreed with the master that upon the merits there is no sufficient showing to defeat the discharge.

The appellants invoke provisions of the Act approved May 27,...

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2 cases
  • Matter of Bruce, Bankruptcy No. 78 B 3500.
    • United States
    • U.S. Bankruptcy Court — Northern District of Illinois
    • 27 d3 Fevereiro d3 1980
    ...was filed. The four cases in which the law changed after the filing of the petition in bankruptcy will be discussed briefly. In Dreyfuss Dry Goods v. Morgan,73 the amendment took effect after the filing of the petition and after the hearing by the referee in bankruptcy but before his report......
  • In re Utterback, Bankruptcy No. BK4-78-219.
    • United States
    • U.S. Bankruptcy Court — Northern District of Texas
    • 15 d4 Novembro d4 1979
    ...is that in existence when the issue is determined. In Re Carter, 32 F.2d 186, (Ct.App. 2nd Cir., 1929); Dreyfuss Dry Goods Co., et al. v. Morgan, 23 F.2d 54 (Ct.App. 5th Cir., 1927); Pennsylvania Higher Education Assistance Agency v. Payton, 4 Bankr.Ct.Dec. 1126 (E.D.Penn., 1979); New York ......

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