Helliwell v. Haberman, 240.
| Decision Date | 15 February 1944 |
| Docket Number | No. 240.,240. |
| Citation | 140 F.2d 833 |
| Parties | HELLIWELL et al. v. HABERMAN. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas Jefferson Ryan, of New York City, for appellants.
Sydney B. Levy, of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
This appeal comes before us in such a form that we cannot dispose of it with any certainty that we are not exceeding the limitations upon our jurisdiction. Preliminarily, the only parts of the testimony which the record contains are in all probability not those upon which the parties expect the appeal to be decided. The appellants designated certain pages of the testimony as those to be included. Rule 75(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The appellee designated nothing on his part, and upon the record made up of the appellants' designated pages alone we should probably be obliged to reverse the order on the merits. Possibly the appellee was not aware that he must make a designation; in any event he has argued the case as though the whole testimony was before us. Nor did the appellants themselves comply with the rule; they should have physically separated, and made part of the record, those pages which they had designated and no more. Rule 75(b). They did not do this; they have sent up the whole 300 pages of testimony, expecting us — we assume — to pick out the designated parts from the rest. This we decline to do; and we should in no case have considered the merits until the record had been properly prepared.
However, we could not have proceeded, even if it had been so prepared, owing to the absence of any findings by the referee. Since there appears to be some confusion as to the office of these, an explanation may be useful. We have only two functions upon an appeal under § 24 of the Bankruptcy Act, 11 U.S.C.A. § 47; we may correct errors of law, and reverse a referee's findings of fact when "clearly erroneous." Rule 53(e) (2). Unless, however, the record tells us what facts the referee has found, it is impossible for us to know what rules of law he has followed. Nor can we decide whether the findings are "clearly erroneous" until we know what facts they include. The case at bar is a good instance of our resulting embarrassment. We infer that the referee did not feel himself bound by the Administrator's definitions (§ 541.1 Chapter V, Title 29, Code of Federal Regulations), promulgated under the power granted him by § 213(a) (1) of Title 29 U.S.C.A.; certainly he did not feel so as to all they prescribe. On the other hand we agree with the decision of the...
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