In re Cole

• Decision Date: 24 October 1907
• Docket Number: 686.
• Citation: 163 F. 180
• Parties: In re COLE. v. COLE. FIRST NAT. BANK OF BIDDEFORD et al.
• Court: U.S. Court of Appeals — First Circuit

163 F. 180

In re COLE.

FIRST NAT. BANK OF BIDDEFORD et al. v. COLE.

No. 686.

United States Court of Appeals, First Circuit.

October 24, 1907

On Rehearing, February 5, 1908.

Elbridge R. Anderson (Charles W. Bartlett, on the brief), for petitioner.

Benjamin Cleaves, for respondents.

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

PER CURIAM.

The court has no question as to adhering to its opinion passed down on February 16, 1906, in Annie M. Cole, petitioner, No 618, that the order then under consideration is valid in so far as it may be regarded as a legal judgment against Mrs Cole for the amount therein named; but the question before us now is whether that judgment can be enforced only in the ordinary way in which civil judgments rendered by the federal courts are enforced, or whether the further order of the District Court providing for enforcing it by summary proceedings involving imprisonment of the petitioner may also be availed of under the circumstances. Therefore the court desires reargument on the following questions:

First what portion of the records and proceedings in bankruptcy relating to Annie M. Cole, and what facts, may the District Court, or may this court, properly consider with reference to the subject-matter of the pending petition?

Second, can the order brought in question by the pending petition be regarded as valid, or be enforced, unless it is shown that the petitioner, Mrs. Cole, had at the date of said order funds, or could then have obtained funds, from which the payment of the amount ordered to be paid by her could then have been made or in any way secured?

Third, what are the facts, pro and con, bearing on all the topics involved in the last preceding question?

Ordered that the case be reargued at the January, 1908, session on the questions propounded by the per curiam passed down this day, and that printed briefs in reference thereto be filed on or before December 21, 1907.

On Rehearing.

PUTNAM Circuit Judge.

This petition relates to the same proceeding as that out of which our opinion arose which we passed down on February 16, 1906 (144 F. 392, 75 C.C.A. 330), namely, an order of the District Court of March 4, 1905, that the bankrupt pay certain moneys to her trustee in bankruptcy. As a sequence thereto, the District Court, on November 6, 1906, after suitable intervening proceedings, entered an order that Mrs. Cole stand committed to the marshal of the district, to be incarcerated until she delivered to her trustee in bankruptcy $2,425, or until otherwise discharged. The petition before us was filed under the statutes in bankruptcy to revise this order of committal in matters of law. The order was in pursuance of a petition filed by the trustee in bankruptcy on June 4, 1906, setting out that Mrs. Cole had not paid over the moneys required by the District Court, as we will more fully show. The propositions of the present petitioner which we need to consider are: First, that the District Court admitted proofs which it should not have admitted; and, second, that there were not proofs to justify the District Court in making the order of committal.

If Mrs. Cole, who had been adjudged a bankrupt by the District Court, has willfully disregarded its order in reference to the payment of money to the trustee, she might be proceeded against under the general powers vested in superior courts of judicature with reference to contempt, or, also, under the second section of the act of July 1, 1898, c. 541, 30 Stat. 545, 546 (U.S. Comp. St. 1901, p. 3420), which authorizes the District Courts in bankruptcy 'to enforce obedience by bankrupts, officers and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment. ' If the proceeding in the District Court was taken by virtue of the specific provision of the statute, it would be the natural presumption that the proper method of reaching us would be that which was in fact availed of, namely, a petition for revision under the same act. If, on the other hand, the proceeding in the District Court had relation to the general powers vested in superior courts of judicature with reference to contempts, the question would at once arise whether the present petitioner, Mrs. Cole, should not have come to us by writ of error. The parties themselves have made no issue as to either of these topics; but, as this application is without precedent in this court, and without authoritative exposition in all respects in the Supreme Court or in other Circuit Courts of Appeals, and as the extent to which the conclusions in the District Court may be reviewed may depend on the nature of the proceeding there, as also on the method taken to obtain a review thereof by this court, it is advisable that we should explain the position further.

When a case comes up on writ of error with reference to a jurywaived trial of a civil case, or to a proceeding for contempt according to the ordinary course of the common law, the then method of raising questions which do not appear on the face of the pleadings would, if applied to this record, very much limit the scope of our examination with regard to the merits. If, on the other hand, the proceeding in this case was that especially authorized by the second section of the act of July 1, 1898, so that a petition to revise would presumably be the ordinary way of reaching us, and if, on any petition to revise like that before us, we are not restricted as we would be on a writ of error, our outlook is much broadened, and we are authorized to search the opinions filed in the District Court, although not a part of the record in the strict sense of the word, for the purpose of ascertaining at large what were in fact the issues which that court considered. While such opinions cannot be referred to for the purpose of eking out findings of fact when those findings are required to be of record, yet they are constantly made use of when, as for example on a writ of error from the Supreme Court to a state tribunal, the appellate tribunal is at liberty to ascertain at large the propositions of the common, or statute, or constitutional law, on which the case proceeded. This is a clear rule, a very late application of which is in Burt v. Smith, 203 U.S. 129, 134, 27 Sup.Ct. 37, 51 L.Ed. 121. As the parties have freely discussed the case at large without objection on either side, we feel safe to adopt the broader view, and it is our present opinion that it is our right so to do. We are supported in this by Mueller v. Nugent, 184 U.S. 1, 22 Sup.Ct. 269, 46 L.Ed. 405. On the whole, we accept for this case the position that the proceeding in the District Court was by virtue of the statutory provision expressly authorizing it to compel obedience to its orders; that the way for any party dissatisfied with the conclusion of that court to reach us was by a petition for review; that on such petition we can revise any question of law as to which we may justly infer that the District Court reached a conclusion, whether formally expressed or not, and whether or not formally presented; and that, to that end, we may search, not only the record in that court, but also its opinions.

As said in the opinion passed down by us on February 16, 1906, already referred to, the District Court proceeded originally by a consolidated order, directing the bankrupt to turn over to the trustee the money in controversy, and also directing that, in default thereof, she should be committed. There is no doubt that that order was supported by some precedents; but it seemed to us not consonant with the rules intended for the protection of personal liberty, which rules ought to be applied with special strictness where the imprisonment of a citizen is in any extent absolutely at the control of a single judge, as is the fact here. Therefore we followed the practice in this particular shown by Mueller v. Nugent, 184 U.S., at page 5, 22 Sup.Ct.at page 269, 46 L.Ed. 405. The proceedings there were more summary than before us; but the clear essentials were preserved as we directed them to be preserved here, in that the order to turn over the property was entered, notice thereof given to the individual against whom it ran, with an interval of time to comply therewith, and a refusal so to do, before any order was issued as against one in contempt. The fact that we thus, in a certain sense, dissevered the proceedings, gave rise to the contention now made as to what proofs were properly cognizable by the District Court on the precise issue now before us.

In our opinion we said that:

'A proceeding for contempt is of a different character from one resulting in a mere order for the payment of money to a trustee in bankruptcy.'

We also added:

'It is claimed that it is criminal in its nature, while an order for the mere payment of money is purely civil; that it would be justified only by the proofs and the amount of proofs requisite on ordinary criminal issues; and that it is in effect an independent proceeding which can be initiated only after an order for payment of money has been disobeyed, and on an order to show cause, or some other new notice, given to the person alleged to be in default.'

On the present proceeding, the petitioner, Mrs. Cole, seems to assume that we ruled all that we said was claimed by her. We were so far therefrom that we added that it was sufficient then to say that the record did not show that she had had any day in court on the question of contempt. The sum and substance of all we authoritatively ruled was that the record should show that an issue had been made in some way on the question of contempt, and that the person adjudged guilty thereof had had an opportunity to be heard in reference thereto.

It...