In re Holden
| Decision Date | 04 March 1913 |
| Docket Number | 2,275. |
| Citation | 203 F. 229 |
| Parties | In re HOLDEN. |
| Court | U.S. Court of Appeals — Sixth Circuit |
B. M Corwin and C. V. Holding, both of Grand Rapids, Mich., for petitioner.
Dunham & Dunham, of Grand Rapids, Mich., for respondent.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
This case comes here on a petition to revise in matter of law an order of the court below dismissing the petition in a contempt proceeding. April 6, 1911, basing his action upon testimony of the bankrupt, the trustee presented a petition to the referee, alleging that the bankrupt had 'fraudulently appropriated to his own use, secreted concealed and transferred property or money, or both, which your petitioner, as trustee in bankruptcy in this matter, is entitled to receive, to the amount of $6,676.21,' and also certain profits on merchandise sold by the bankrupt, the amount of which petitioner was unable to state because the bankrupt had kept no proper books of account; and praying for an order directing the bankrupt to account for such sum and profits. Answer was made consisting in substance of denials and also an averment that the trustee had taken possession of the stock, papers, and books of the bankrupt, and so had prevented him from further accounting. The assets of the bankrupt consisted of a stock of merchandise. He had been in business at Grant, Mich., from February 10, 1910, to January 26, 1911, and also at Sand Lake and Kent City, Mich., goods having been taken to these latter places from his stock at Grant. He was adjudged bankrupt on the date last mentioned. The matter of accounting was heard upon evidence offered by the trustee, but none was offered by the bankrupt, although he was present and represented by counsel. The referee stated an account, and found that respondent had failed to turn over $4,000, and ordered him to pay that sum to the trustee within 30 days. November 20, 1911, the trustee filed a petition in the court below setting out the proceedings mentioned alleging that service of the referee's order had been made upon respondent, that he had failed to pay any part of the sum covered by the order, and praying for an order directing respondent to appear and show cause why an attachment for contempt should not issue against him for disobedience of the referee's order. On the same date an order was entered in the court below, reciting that a hearing was necessary, and directing that respondent file answer and show cause why the prayer of the petition should not be granted. The bankrupt's answer to the petition was in the form of an affidavit, distinctly denying that he had at any time secreted or concealed any of his property, or in any manner disposed of any with intent either to cheat or defraud his creditors; that at the time he was declared a bankrupt all of his property, except his wearing apparel, was delivered to the trustee; that the only reason he had disobeyed the order of the referee was his 'absolute inability to obey the same'; that for several months prior to the bankruptcy 'he had to leave his business almost entirely in charge of clerks, whom at that time he believed to be honest'; that his health was such that he had to get out of doors and away from business, but that he honestly believed every dollar received by his clerks would be properly accounted for and turned over; that until the hearing before the referee he believed this had been done, stating, also, that he was unable to give any further explanation of his business than that given before the referee. No additional proofs were taken in the court below, and no steps were taken to have the referee's order reviewed. One of the questions considered below was:
'Under these circumstances, is the finding and order of the referee conclusive upon both the bankrupt and this court, and is the duty of this court in the premises merely formal and ministerial, or is it the duty of this court to make an independent investigation of the facts disclosed by the evidence and to reach an independent conclusion based upon such investigation?'
The evidence taken before the referee was certified to the court below. The learned trial judge examined the whole record with a view of reaching an independent conclusion 'at least as to the ability or inability of the bankrupt to comply with the order of the referee,' and he also very fully considered the law of the case ((D.C.) 193 F. 168). The opinion of the court is part of the record and in practical effect treated by the parties as a finding of facts; and, unless we so treat the opinion, the petitioner has nothing here for review. It is important to compare the findings of the referee with the conclusion of fact reached by the trial judge, for both are based upon the same evidence. The ultimate finding of the referee is:
'I therefore find that the respondent bankrupt has failed to account for property, or money, or both, of the value of $4,000, and that such amount belongs to this estate, and is withheld from the trustee thereof.'
In the recitals of the order entered by the referee this appears:
'The said respondent has failed to account for the sum of $4,000, and that such amount belongs to this estate and is concealed and withheld from the trustee thereof.'
In the course of the opinion the court reached this conclusion:
...
To continue reading
Request your trial
-
Maggio v. Zeitz In re Luma Camera Service, Inc
...et al. v. Dodd, 5 Cir., 142 F. 68, certiorari denied 201 U.S. 646, 26 S.Ct. 761, 50 L.Ed. 903; In re Nisenson, D.C., 182 F. 912; In re Holden, 6 Cir., 203 F. 229, certiorari denied 229 U.S. 621, 33 S.Ct. 1049, 57 L.Ed. 1355; In re McNaught, D.C., 225 F. 511; Dittmar v. Michelson, 281 F. 116......
-
Sequoia Auto Brokers Ltd., Inc., In re
...(3d Cir.1967); O'Hagan v. Blythe, 354 F.2d 83, 84 (2d Cir.1965); In re Haring, 193 F. 168, 171 (W.D.Mich.1912), aff'd sub nom. In re Holden, 203 F. 229 (6th Cir.), cert. denied, 229 U.S. 621, 33 S.Ct. 1049, 57 L.Ed. 1355 (1913). Section 41 of the 1898 Act, ch. 541, 30 Stat. 544, 556 (codifi......
-
In re Cox Cotton Co.
...378 F.2d 104 (3d Cir.1967); O'Hagan v. Blythe, 354 F.2d 83 (2d Cir.1965); In re Haring, 193 F. 168, 170-73 (W.D.Mich.1912), aff'd, 203 F. 229 (6th Cir.), cert. denied, 229 U.S. 621, 33 S.Ct. 1049, 57 L.Ed. 1355 (1913). The applicable statute required the referee to certify to the district j......
-
Proctor v. State Government of North Carolina
...the Bankruptcy Act that the better practice is to allow any party the opportunity to introduce evidence upon request. See In re Holden, 203 F. 229, 233 (6th Cir.1913); O'Hagan v. Blythe, 354 F.2d 83, 84 (2d Cir.1965); Berkhower v. Meilzner, 29 F.2d 65 (6th Cir.1928); In re Schulman, 177 F. ......