In re Boston Dry Goods Co.

• Decision Date: 13 October 1903
• Docket Number: 463 (Original).
• Citation: 125 F. 226
• Parties: In re BOSTON DRY GOODS CO. et al. In re NOYES BROS.
• Court: U.S. Court of Appeals — First Circuit

125 F. 226

In re BOSTON DRY GOODS CO. et al. In re NOYES BROS.

No. 463 (Original).

United States Court of Appeals, First Circuit.

October 13, 1903

Frank H. Stewart, for petitioners.

Jeremiah Smith, Jr., pro se, and Ralph S. Bartlett, for George G Stratton and thirty-one other creditors.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

This is a petition under the bankruptcy act of July 1, 1898, c. 541 Sec. 24b, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432), by sundry creditors of Noyes Bros., Incorporated, bankrupt. Our jurisdiction is, of course, limited to matters of law. The object of the petition is that we should revise the determination of the District Court with reference to the election of trustees of the bankrupt estate. It was brought by several creditors who voted for one Mr. Spring for trustee, and who constituted the majority in number of those present at the meeting whose claims had been allowed. The referee admitted and canvassed votes alleged to have been thrown by other creditors, whose claims had been allowed, for a board of three trustees. These, as their votes were canvassed, constituted a majority in amount; so the referee determined that there was no election, and appointed one of the respondents sole trustee. His action was confirmed by the District Court. The petitioners claim that their votes elected Mr. Spring trustee, and object to the canvassing made by the referee and to his appointing the present respondent trustee, and, in fact, to his appointing any trustee.

It was observed in Falter v. Reinhard (D.C.) 104 Fed.292, 295, as to Mr. Zinn, whose choice as trustee was ultimately set aside in part for the very reasons which are urged in this case, that there could be no personal objection, and that he was a reputable citizen and a business man of acknowledged ability, whose competency for the position was not questioned. We must observe that the same may properly be said about all the persons who were candidates for that office in the case before us. Moreover, there is no evidence and no suggestion that any substantial detriment would come to the estate as the result of these proceedings, whichever way they may be determined.

Ordinarily, with regard to revisory petitions of the class to which the one at bar belongs, we have made due allowance for the facts that the bankruptcy act of July 1, 1898, gives no specific directions as to the practice with reference thereto, and that our rule 36, framed concerning the same, should be regarded as tentative, having been designed especially to secure prompt administration, and with a lack of experience on the part alike of the bench and the bar. Yet, of course, it must be admitted that we are not expected to look through the whole record for the purpose of ascertaining the issues intended to be laid before us, and we are not justified in doing so with regard to conflicting or obscure statements. It must also be admitted that ordinarily a record conforming strictly to the purpose of the statute would present to us simply, clearly, and unequivocally issues of law, to the like effect as by bills of exceptions, by proceedings without a jury, under sections 649 and 700 of the Revised Statutes (U.S. Comp. St. 1901, pp. 525, 570), by proceedings in the Supreme Court in causes of admiralty and maritime jurisdiction, while appeals lay from the Circuit Courts to the Supreme Court as provided in the act of February 16, 1875, c. 77, 18 Stat. 315 (U.S. Comp. St. 1901, p. 525), and by proceedings certifying causes to the Supreme Court as provided in section 6 of the act of March 3, 1891, c. 517, 26 Stat. 826 (U.S. Comp. St. 1901, p. 547), establishing the Circuit Courts of Appeals. While, with reference to a proceeding of the class before us, there is nothing which especially directs the District Court with regard to findings of fact or statements of conclusions of law, as do some of the statutes to which we refer, yet the various decision of the Supreme Court as to those statutes must be studied for a proper understanding of the substantial requisites of a record like that at bar. Moreover, while as to some matters of a substantial character justice may require that jurisdiction be taken on appeal of issues not presented require that jurisdiction be taken on appeal of issues not presented to the original tribunal, yet, as we will see, there is nothing of that kind in the case before us; and, in order that it may appear by the record that issues raised on appeal were presented below, findings of fact which involve distinct propositions of law, or something else as a substitute therefor, are necessary.

The petition in the present case was filed, as we have said, by one class of creditors, making the trustee a respondent, as also one of the other class of creditors by name, and it also assumed to make 31 others respondents, without naming them, all in the same class as the creditor specified. The answers make some objection to this description of the 31 other creditors; but this was not followed up, and all we need say is that we do not now assume to approve the form of the petition in this particular or to disapprove it.

The record intends to raise two leading questions. One is, what powers has the court in canvassing votes for a trustee alleged to have been procured or solicited by the bankrupt and how far should it exercise them, and according to what rules. The second is whether an attorney was properly allowed to represent creditors who were not personally present at the meeting. As to both of these questions, the allegations of the petition are in the form of statements by way of inducement, and therefore they are neither positive, direct, nor full. There are departures between the allegations in the body of the petition and the seriatim statement of the claimed errors of the District Court, and further departures between each of them and the certificate of the referee as to the questions which arose before him. The petition is also erroneous in that it assumes that the opinion of the learned judge of the District Court states the 'findings, rulings, and orders' of that court, so that it may be...