In re Marks

• Decision Date: 24 June 1909
• Docket Number: 2,152.
• Citation: 171 F. 281
• Parties: In re MARKS.
• Court: U.S. District Court — Eastern District of Pennsylvania

171 F. 281

In re MARKS.

No. 2,152.

United States District Court, E.D. Pennsylvania.

June 24, 1909

Joseph L. Greenwald, for bankrupt.

George Wentworth Carr, for trustee.

J. B McPHERSON, District Judge.

The facts under which the pending question arises appear from the following certificate of the referee:

'Jacob M. Marks was adjudicated bankrupt on March 8, 1905, upon petition filed against him January 17, 1905. At several adjourned first meetings of creditors he was examined at length, and thereafter on June 26, 1905, Joseph Tomkinson trustee in bankruptcy, filed a petition for an order on the bankrupt to show cause why he should not pay $9,321.67 to his said trustee. Further testimony was taken under said petition, and by agreement of counsel the bankrupt's answer was filed subsequently, to wit, on October 10, 1905. The testimony taken under said petition and answer was concluded on April 27, 1906, and argument of counsel heard by me on May 25, 1906.

'On September 19, 1906, I filed an opinion and entered an order directing the bankrupt to pay to his trustee the sum of $8,022.45. On September 28, 1906, the bankrupt filed exceptions to my said opinion and findings, and also filed an affidavit in support of a motion to revoke the said order. After further hearing I filed a supplemental opinion, dismissing the said exceptions, on January 23, 1907. On February 26, 1907, the bankrupt filed a petition to revoke my said order, and on March 12, 1907, the trustee filed his answer to filed an opinion and order reducing the sum of the original order of $8,022.45 by $4,875, and revoking the said order as to the balance of $3,147.45. On February 26, 1908, the trustee, by his attorney, filed exceptions to my said order, together with a request to certify the same, together with the record, to the District Court.'

The trustee objects that the referee had no power to reduce the amount of the original order to $3,147.45 and then to revoke the order as to such balance. In the light of the opinion of this court in Re Greek Mfg. Co., 21 Am.Bankr.Rep 111, 164 F. 211-- of which the referee could have had no knowledge in February, 1908, since the opinion was not delivered until the following September-- it must be declared that the order of revocation was erroneous. In the case just cited it was held that under general order 27 (32 C.C.A. xxvii, 89 F. xi), and a rule of this court that was made in December, 1904,...