In re Frank

• Decision Date: 07 November 1910
• Docket Number: Original.,103
• Citation: 182 F. 794
• Parties: In re FRANK.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F. 794

In re FRANK.

No. 103, Original.

United States Court of Appeals, Eighth Circuit.

November 7, 1910

John E Greene (L. J. Palda, Jr., on the brief), for petitioner.

Robert H. Bosard, for respondent.

Before SANBORN and ADAMS, Circuit Judges, and REED, District Judge.

REED District Judge.

The petitioner, Barney Frank, was adjudged an involuntary bankrupt January 8, 1908, also the firm of F. Frank & Sons of which he was a member, and the defendant Nash afterwards duly appointed as trustee of their estates. The petition to revise alleges, in substance: That the petitioner was examined before the referee at thefirst meeting of creditors which began January 30, 1908, and continued at intervals for several days, and at the conclusion of an examination held on February 28th the trustee filed a petition before the referee asking that the petitioner be required to turn over to him $3,774.16 in cash the property of the bankrupt estate, shown by such examination to have been received by the petitioner during the months of November and December, 1907, and for which he has not accounted to the trustee. That upon the filing of this petition the referee made and entered in the presence of the petitioner an order requiring him to appear on Monday, March 2, 1908, and show cause why he should not be required to comply with the demands of the trustee. That the petitioner appeared with counsel before the referee on the day fixed, and before any proceedings were had objected to any hearing upon the petition because 'it failed to allege facts sufficient to constitute a basis for such an order. ' That the objection was overruled, and the petitioner was then called and required to testify to the matters referred to in said petition. That at the conclusion of his examination on that day he requested that he be allowed time to get the testimony of his wife with respect to funds for which he was asked to account. That to this request the attorney for the trustee objected 'to the petitioner being excused to go to Sioux City to take the testimony of Mrs. Frank. ' Whereupon the referee made and entered the following order:

'For the present Mr. Frank is ordered to be within reach, so that he can be gotten here at an hour or two's notice. When it comes to the time of taking the depositions, I will ask Mr Bosard (attorney for the trustee) * * * if he has actual use for the bankrupt here for examination during that time, and, if he has not, I shall excuse him. If he tells us he has, I shall expect to take his word for it, and I shall not expect that word to be violated.'

March 3d the proceedings were adjourned, 'to an indefinite time, to be called upon the preparation of depositions, which time was previously asked for. ' That thereafter on said March 3d the trustee obtained an order for the examination of John Kaufman, S. J. Kruger, and Ada Frank (the latter being the wife of the petitioner) before a referee in bankruptcy at Sioux City, Iowa. That said order was obtained without notice to the petitioner, and thereafter on March 6, 1908, the examination of said witnesses was had pursuant to said order before a referee in bankruptcy at Sioux City, and that at such examination no opportunity was given the petitioner to be present either personally or by counsel, or to participate in the examination of said witnesses. That the testimony of said witnesses so taken is submitted with the certified transcript accompanying this petition and marked 'exhibit D' hereof. That thereafter and on April 2, 1908, the referee upon such testimony, and other testimony included in said 'exhibit D,' made and filed and order requiring the petitioner to turn over to the trustee within 20 days the sum of $1,600 in cash, which said order, together with the findings of the referee, is attached to the petition as 'exhibit A.' That afterwards the petitioner filed with the referee a petition for review by the judge of said order, and on October 16, 1909, upon a hearing of said petition, the order of the referee was modified by the judge by reducing the amount the petitioner was required to pay to $1,200, and as so modified the order was approved.

'that said last-mentioned order was erroneous in matter of law in this:

'first. The said District Court had not jurisdiction or authority to make said order of October 16, 1909, because the petition of the trustee upon which said order and the order of said referee were based did not set forth sufficient facts to vest said court or said referee with authority or jurisdiction, and because no issue was ever framed or joined upon said petition.

'second. That the proceedings were summary in their nature, and that material parts of the evidence received by the referee was taken without notice to this petitioner and without opportunity being given him to be present or take part in the examination of witnesses whose testimony was offered and received on the part of the trustee in this proceeding, and that in that respect such proceedings were illegal because the petitioner was deprived of rights to which he was entitled, as upon the trial of an issue duly joined.

'third. The said District Court was without authority to make the order, because the undisputed testimony shows that the moneys thereby ordered paid to the trustee by this petitioner are not, and were not at the time of the making of said order, in the possession of, or under the control of, your petitioner the bankrupt, but were and are in the possession and under the control of one John Kaufman and S. J. Kruger, copartners as Kaufman & Kruger, residing in the city of Sioux City, and the state of Iowa, neither said Kaufman or Kruger being parties to this proceeding; and because they, the said Kruger & Kaufman, held and hold said moneys, adversely to both your petitioner and his trustee, under a claim that said money was paid to them in satisfaction of a loan made by them to the bankrupt.'

A prayer follows for the annulment of the order.

Exhibit D attached to the petition does not contain, nor purport to contain, all of the testimony upon which the orders were based; but it does contain the proceedings before the referee at the time the petition of the trustee was filed, the hearing upon that petition, and the manner in which the testimony of the witnesses at Sioux City was procured, and what purports to be the testimony so taken at Sioux City

The trustee has filed no answer to this petition to revise, and has not otherwise controverted the same, but has filed a motion to dismiss the same upon the ground 'that it appears therefrom that the order of the referee, and of the judge approving it, were made upon conflicting evidence and involve questions of fact that can only be reviewed upon appeal and not by petition to revise.'

Rules 36 to 44 inclusive of this court (150 F. cxviii-cxx, 79 C.C.A. cxviii-cxx) govern the practice herein in proceedings under section 24b of the bankruptcy act (Act July 1, 1898, c 541, 30...