Henkin v. Fousek

• Decision Date: 07 July 1920
• Docket Number: 5164.
• Citation: 267 F. 557
• Parties: HENKIN v. FOUSEK.
• Court: U.S. Court of Appeals — Eighth Circuit

267 F. 557

HENKIN v. FOUSEK.

No. 5164.

United States Court of Appeals, Eighth Circuit.

July 7, 1920

E. E Wagner, of Sioux City, Iowa, for appellant.

Roy B Marker, of Sioux Falls, S.D. (Cherry & Marker, of Sioux Falls, S.D., on the brief), for appellee.

Before HOOK and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

This is an appeal from an order adjudging appellant a bankrupt guilty of contempt in failing and refusing to pay over to the appellee as trustee in bankruptcy the sum of $6,000, in compliance with an orde of the referee in bankruptcy finding such amount of money to have been concealed by said bankrupt from said trustee, and further adjudging that appellant be committed to jail until such time as he should purge himself of such contempt by paying to the trustee such sum of $6,000. Briefly stated the errors assigned by appellant for a reversal of the judgment below are two in number: (1) The evidence before the court at the hearing which resulted in the order complained of does not show by positive and convincing proof, and beyond all reasonable doubt that the bankrupt actually had the physical possession of said sum of $6,000 and the ability to pay it over to the trustee. (2) That the court erred in sustaining the objection made by the trustee's counsel to a question propounded to the bankrupt. These two assignments of error present questions of law only.

The question as to the sufficiency of the evidence to justify the order appealed from is the same as the question which arises on the assignment of error that the trial court erred in refusing to direct a verdict, and the error assigned as to the sustaining of the objection to the question asked the bankrupt of course present a question of law. In this condition of the record, counsel for appellee insists that the appeal should be dismissed for want of jurisdiction in this court to entertain the same. The jurisdiction of this court to review the judgments of courts of bankruptcy by appeal is provided for in sections 24a and 25a, 30 Stat. 553 (Comp. St. Secs 9608, 9609). Under the provisions of section 24a this court has appellate jurisdiction 'of controversies arising in bankruptcy proceedings. ' Under the provisions of section 25a it has appellate jurisdiction from judgments 'in bankruptcy proceedings' in the following cases: (1) Adjudging and refusing to adjudge the defendant a bankrupt. (2) A judgment granting or denying a discharge. (3) A judgment allowing or rejecting a debt or claim of $500 or over. It is now the settled law that 'controversies arising in bankruptcy proceedings' referred to in section 24a are different from and do not include 'bankruptcy proceedings' referred to in section 25a. Controversies arising in bankruptcy proceedings being appealable under the general appellate jurisdiction of this court while our appellate jurisdiction in bankruptcy proceedings is limited by section 25a as above described. In re Loving, Trustee, 224 U.S. 183, 32 Sup.Ct. 446, 56 L.Ed. 725; Coder v. Arts, 213 U.S. 223, 29 Sup.Ct. 436, 53 L.Ed. 772, 16 Ann.Cas. 1008; Century Savings Bank v. Robert Moody & Son et al. (C.C.A.) 209 F. 775; Thompson et al. v. Mauzy, 174 F. 611, 98 C.C.A. 457; Morehouse v. Pacific Hwd. & Steel Co., 177 F. 337, 100 C.C.A. 647; Kirsner v. Taliaferro, 202 F. 51, 120 C.C.A. 305; In re Mertens, 142 F. 445, 73 C.C.A. 561; In re Shidlovsky, 224 F. 450, 140 C.C.A. 654; Knappenburg v. Rowan, 258 F. 121, 169 C.C.A. 207; Adams v. Deckers Valley Lumber Co., 202 F. 48, 120 C.C.A. 302; Henkin v. Fousek, 246 F. 285, 159 C.C.A. 15; Horton v. Mendelsohn, 249 F. 185, 161 C.C.A. 221; In re Mueller, 135 F. 711, 68 C.C.A. 349.

We are clearly of the opinion that the order from which the present appeal is taken was made in a bankruptcy proceeding within the meaning of section 25a. It was a proceeding to compel the bankrupt to turn over to the trustee for the benefit of creditors money which the court had found was in his possession at the time he was ordered to turn the same over to the trustee, and which it also found belonged to the bankrupt estate for the benefit of creditors. When the turn over order was made appellant sought to have the same reviewed by this court in...