In re Miner

• Decision Date: 12 September 1902
• Docket Number: 267.
• Citation: 117 F. 953
• Parties: In re MINER.
• Court: U.S. District Court — District of Oregon

117 F. 953

In re MINER.

No. 267.

United States District Court, D. Oregon.

September 12, 1902

BELLINGER District Judge.

The petition for rehearing is in effect a reargument of the questions heretofore considered and decided by the court, and a review of the court's opinion in the case. A single new question is presented. It is now contended that the finding and decision of the referee are conclusive. The jurisdiction of this court in bankruptcy proceedings, like that in equity extends to the examination of all findings made in the case. If the findings of the referee appear to be erroneous, they will be set aside. It is not to be supposed that there is such sacredness in the findings of the referee that the district court will not examine the testimony in support of them, and, becoming satisfied that the referee has erred will not correct the error. It is quite needless to argue that the district court will not reverse the findings of fact of the referee unless the same are manifestly erroneous. This goes without saying. In this case the order made is upon a conclusion that the findings of the referee are manifestly erroneous. But it is contended that such findings are conclusive on review where no exceptions are filed to the report, and In re Carver, 113 F. 178, 7 Am.Bankr.R 539, is cited to that effect. That was a case presented on certificate of the referee. I doubt whether in that case, as in this, the specific question as to the correctness of the findings involved was certified to the district court for its decision. Where such a question is certified, I am of the opinion that an exception is not necessary. An exception is a form of objection, and the certifying of the question for review involves specific legal objection by the party aggrieved. As a matter of fact, the questions presented were certified upon the petition of the complaining party, in which she formally excepts to the orders in question. 'This, your petitioner, hereby excepts to said orders,' etc., is the language of the petition, which concludes with a prayer that such order be certified to the district court for review, which was accordingly done.

In addition to the several matters which the petition for a rehearing alleges the court did not consider, it is alleged that the court 'in its opinion says nothing of the charge made by the creditors of the false claim presented by the bankrupt in favor of H. E. Smith. ' In his petition of bankruptcy, Miner made the following statement as to this claim 'The amount of this claim is not known to the petitioner. The indebtedness was contracted at Merrill, Oregon, and Klamath Falls, ever since 1897. No statement has been furnished, no settlement had. It is for merchandise sold to petitioner.'

The objecting creditors say that the bankrupt, by leaving out the amount of the debt due H. E. Smith, 'and failing to state the truth about said claim, unlawfully and fraudulently permitted the said H. E. Smith to file and present for allowance against his, the said Miner's, estate, a claim in the sum of $524.29; that Miner well knew, but fraudulently withheld such knowledge with intent to mislead these, his creditors, now objecting, that there was no greater or further amount of said claim upon or for which he was in any wise liable to the said Smith than the sum of $66.22 notwithstanding he, the said Miner, suffered and permitted said claim to be filed in the said sum of $524.29; that Miner withheld the...