In re Kehler

• Decision Date: 06 June 1908
• Citation: 162 F. 674
• Parties: In re KEHLER.
• Court: U.S. Court of Appeals — Second Circuit

162 F. 674

In re KEHLER.

United States Court of Appeals, Second Circuit.

June 6, 1908

Guy E Farquhar, for appellant.

John A Van Arsdale, for appellees.

Before COXE, WARD, and NOYES, Circuit Judges.

COXE Circuit Judge.

This is a motion by the petitioning creditors and by the receiver to dismiss the appeal of the committee for the bankrupt on the ground that the same is frivolous and was taken for the purposes of delay. The question which the appellant proposes to argue on this appeal was presented by the former appeal was discussed in the briefs and at the oral argument and was decided by this court. In re Kehler, 159 F. 55. In our opinion we said:

'Should the petitioning creditors desire an opportunity to rebut the presumption of insanity arising from the inquisition, an opportunity should be given them.'

It now appears that this question was referred to a special master who, after hearing a number of witnesses, reported that Kehler was sane when the acts of bankruptcy were committed.

This report was confirmed by the District Court and Kehler was again adjudicated a bankrupt. No evidence to establish insanity was offered by the committee although his counsel appeared and cross-examined the witnesses. The only additional fact, therefore, not appearing on the former record, is that the bankrupt was sane when the acts of bankruptcy were committed. The creditors' petition was filed February 22, 1907, and Kehler was not adjudged insane by the Pennsylvania court until March 2, 1907.

The question now presented was decided by us on the former appeal as follows:

'If he (Kehler) committed the acts of bankruptcy alleged in the petition while insane, the adjudication is a wrong which, irrespective of technical objections to the pleadings and proceedings of his committee, should be righted. If, on the other hand, these acts were committed while sane, there was no error in continuing the case even though the bankrupt subsequently became insane. Section 8 of the bankruptcy act ^[1] provides that the insanity of a bankrupt shall not abate the proceedings, and section 1 provides that the word 'bankrupt' shall include a person against whom an involuntary petition has been filed. It is manifest, therefore, that if Kehler committed an act of bankruptcy while sane, and by reason of such act the court obtained jurisdiction, it can continue the proceedings notwithstanding the subsequent insanity of the

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