In re Goldsmith

• Decision Date: 19 May 1885
• Citation: 12 Or. 414,7 P. 97
• Parties: In re Estate of GOLDSMITH and another, Partners, etc.
• Court: Oregon Supreme Court

7 P. 97

12 Or. 414

In re Estate of GOLDSMITH and another, Partners, etc.

Supreme Court of Oregon

May 19, 1885

Henry Ach, for appellants.

Joseph Simon, for respondents.

THAYER, J.

This is an appeal upon the part of White, Goldsmith & Co., creditors of said estate, from an order of the circuit court for the county of Multnomah refusing to remove Rudolph Goldsmith, the assignee of said insolvent debtors, under the act of the legislative assembly of the state to secure creditors a just division of the estates of debtors who convey to assignees for their benefit, approved October 18, 1878. The appellants on the twenty-first day of October, 1884, filed a petition in the said circuit court, in which they alleged, in substance that they were creditors of said debtors; that said assignee had failed to file such bond as the law contemplated; that he was a brother of one of the debtors; that he had placed under their control and in their possession the assets of the estate, had paid them large salaries, and did not devote any personal attention to the management of the estate; that the father and brother of one of the debtors, Julius Goldsmith pretended to have large claims against the estate which the petitioners desired to contest; that immediately preceding the attachment of the property of the debtors, which caused the making of the assignment, the assignee advised and assisted in securing to the wife of one of the debtors, S.M. Cooper, a claim against the firm of $3,000, and that the assignee had failed to account for $1,000 in money alleged to have been on hand at the date of the assignment.

Upon filing the petition an order was made by the said circuit court requiring the assignee to show cause why he should not be removed as assignee of the said estate, whereupon the assignee filed an answer controverting the allegations of the petition, excepting his relationship as the brother to Julius Goldsmith and the employment of the debtors to assist in conducting the business; denying, however, that he paid them more than a reasonable salary, and claiming that their employment was necessary. The proceeding was then referred to a referee to take the testimony of the parties, and report it with his findings of fact and law. In accordance therewith, the referee took a large amount of testimony concerning the matters charged in the said petition, upon which he made a number of findings of fact, generally in support thereof, and found, as a matter of law, that the assignee should be removed. The assignee filed exceptions to the report, which were heard before the said court, and were sustained, and the report set aside. The court, however, required the assignee to give additional security, which he complied with.

The proceeding has been brought to this court for review upon the evidence taken by the referee. The appellants' counsel has presented it with much force, and has submitted cogent reasons for the removal of the assignee; but he was met at the entrance here with an objection to the jurisdiction of this tribunal to hear and determine the matter which I apprehend is insuperable. The objection is that the appointment or removal of an assignee is a matter of discretion; that if the assignee had been found guilty of wasting or misapplying the estate, it would have been discretionary with the court below, under the insolvent act to remove him or require additional security; and that this court will not review the exercise of such discretion unless it...