In re Foss

• Decision Date: 04 October 1906
• Docket Number: 131.
• Citation: 147 F. 790
• Parties: In re Foss.
• Court: U.S. District Court — District of Maine

147 F. 790

In re Foss.

No. 131.

United States District Court, D. Maine.

October 4, 1906

Wm. R Pattengall, for Mary E. Foss.

C. B Donworth, for Trustee.

HALE District Judge.

Eugene C. Donworth, Esq., one of the referees of the court certifies that, in the course of the proceedings in this cause before him, the following question arose pertinent to these proceedings, to wit: A question as to the legality of the claim of Mary E. Foss against said estate for money loaned said bankrupt and raised by mortgages of claimant's real estate, the referee having disallowed said claim. The referee further reports: That he made an order disallowing said claim on January 24, 1906; that on February 24, 1906, a petition for review was filed with the referee, said referee having had no notice prior thereto of an intention by claimant to ask for a review. That on the same day, to wit, February 24, 1906, the attorney for the creditors filed a written objection to the allowance of the filing of the petition on the ground that such petition was not filed within a reasonable time; and on February 28, 1906 the attorney for the claimant was notified that such objection was filed. On June 18, 1906, the referee ruled that the above petition for review was not seasonably filed, and thereupon made an order to that effect, and notified the attorney for the claimant of such decision.

The matter now comes before the court upon the two questions:

First. Was the petition for a review by the District Court of the action of the referee filed within a reasonable time?

Section 39, cl. 5, of the bankruptcy act of July 1, 1898, c. 541, Sec. 39, 30 Stat. 555 (U.S. Comp. St. 1901, p. 3436), makes it the duty of referees 'to make up records embodying the evidence, or the substance thereof, as agreed upon by all parties in all contested matters arising before them, whenever requested to do so by either of the parties thereto, together with their findings therein, and transmit them to the judges.'

General Order in Bankruptcy No. 27 (89 F. xi, 32 C.C.A. xxvii), provides:

'When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon.'

The question now submitted involves a question of law, as well as of fact. There is no time limit fixed for the filing of a petition with the referee for a review of his proceedings. It must, therefore, be filed within a reasonable time. Such reasonable time is usually fixed by standing rule; but this court has no standing rule, and, so far as I can find, never has had one touching this point. Where a standing rule has been adopted by any court it has been for a much less time than was taken by the petitioner in filing his petition. The matter of fixing a reasonable time for anything involves some difficulty. The court of Maine has said; 'It is difficult to fix a legal latitude and longitude for this fugacious rule. ' In the case at bar, it is not claimed that any rights have been forfeited or affected by the delay in filing the petition for a review of the proceedings. The referee did not act upon the petition until nearly four months after its reception.

In this case I rule that the petition for review was filed within a reasonable time, under all the circumstances; although, if I were making a standing order, I should probably make a limit of 10 days for receiving such petitions for review of a referee's finding. See Collier on Bankruptcy, 311, and cases cited; Loveland, 119, and cases cited.

Second: Was the claim of Mary E. Foss properly disallowed by the referee?

The claim is for cash advanced to W. H. Foss, the bankrupt, by Mary. E. Foss, his wife, on mortgage of her real estate. The total amount for which the claim is now made is $5,400. The testimony tends to show that a certain part of the real estate, which was mortgaged by the claimant to obtain the money advanced to her husband, was earned by her in keeping a boarding house, and that another portion of the consideration for the purchase of the real...