In re Medearis

• Decision Date: 28 July 1923
• Docket Number: 910.
• Citation: 291 F. 709
• Parties: In re MEDEARIS.
• Court: U.S. District Court — Western District of Texas

291 F. 709

In re MEDEARIS.

No. 910.

United States District Court, W.D. Texas, San Antonio Division.

July 28, 1923

Cofer &amp Cofer, of Austin, Tex., for bankrupt.

WEST District Judge.

This is a voluntary petition accompanied by an affidavit in forma pauperis under subdivision 2, Sec. 51, of the act (Comp. St Sec. 9635). Paragraph 3 of rule 28 governing bankruptcy procedure in this court provides:

'In case a petition is filed by a proposed voluntary bankrupt which is accompanied by an affidavit under subdivision 2 of section 51 of the act, it shall be the duty of the clerk to file said petition without the payment of the fees provided for by law. If the clerk, or the referee to whom said petition is referred, has reason to believe such affidavit is false, he may file a certificate to that effect and cause the bankrupt to be examined. If upon such examination the referee reports in writing that the statements contained in such affidavit are false, and that the bankrupt has and can obtain money with which to pay said fees, such report shall be sufficient proof upon which to base proceedings under subdivision 4 of General Order No 35.'

The clerk filed the petition without the payment of the fees provided by law and in the absence of the judge referred the petition to the referee. The referee, having reasons to believe the affidavit to be false, filed his certificate to that effect and caused the bankrupt to be examined, thereafter making his written report to the court that the statements contained in the affidavit were false, and that the bankrupt has and can obtain money with which to pay the fees. The bankrupt moved for an adjudication notwithstanding.

The submission is on the petition and schedules, the testimony taken by the referee, his report, and certificate. The local court rule, supra, in effect confers powers on a referee analogous to those of the special master. His findings upon an examination of the bankrupt after notice and hearing, and his report to the court, have standing equivalent to a report of a special master in like circumstances. The bankrupt's motion to adjudicate notwithstanding the certificate and report embody in effect exceptions to the findings of law and fact of the special master, presenting issues as to whether or not the report should be confirmed, modified, or set aside.

The referee finds as a matter of law that the amount of filing fees, $30, may be deducted from the property which...