In re Stitzer Hotel Co.
| Decision Date | 18 December 1928 |
| Docket Number | No. 11616.,11616. |
| Parties | In re STITZER HOTEL CO. |
| Court | U.S. District Court — District of New Jersey |
Bolte & Tripician, of Atlantic City, N. J., for petitioning creditors.
George A. Bourgeois, of Atlantic City, N. J., for alleged bankrupt.
The involuntary petition in this case alleged but one act of bankruptcy, which was denied by the answer of the alleged bankrupt. On a reference, the referee reported that the company was "a bankrupt as charged." A review of this finding is sought by the filing of exceptions in this court. This method, however, does not conform to General Order in Bankruptcy 27, which controls. In re Clark Coal & Coke Co. (D. C. W. D. Pa.) 173 F. 658; In re Octave Mining Co. (D. C. Ariz.) 212 F. 457.
This order is as follows:
The foregoing order is based upon the fifth paragraph of section 39 of the Bankruptcy Act, 11 USCA § 67 (a) (5), Cunningham v. German Ins. Bank (C. C. A. 6) 103 F. 932, and was made by the United States Supreme Court under section 30 of the Bankruptcy Act (11 USCA § 53), and is as obligatory on the officers of the court as the act itself, J. B. Orcutt Co. v. Green, 204 U. S. 96, 102, 27 S. Ct. 195, 51 L. Ed. 390; Wilkinson v. Walker (D. C. N. D. Tex., Fort Worth Div.) 292 F. 395, 402, and cases there cited.
The order, it is noted, imposes certain duties upon both the referee and the person seeking to review his findings, viz. the filing of a petition by the aggrieved party with the referee, setting out the error complained of, and the certification by the referee of the questions presented and a summary of the evidence relating thereto; none of which was done in this case. The mere failure on the part of the alleged bankrupt to file a petition for review with the referee would justify the dismissal of the exceptions, as such a petition is essential to jurisdiction.
However, even if this necessary jurisdictional step had been taken, there still exists the failure on the part of the referee to certify a summary of the evidence taken before him, and this also of itself justifies a declination to hear the proposed review. In re Stubblefield (D. C. W. D. Tex., Waco Div.) 260 F. 591. In the particular circumstances of this case the failure to certify such a summary is a peculiarly aggravated one. Considerable of the testimony introduced by the petitioning creditors was challenged at the time it was given. The referee, however, admitted it, saying, in substance, that it was taken subject to the objections. The record does not show that the referee ever gave a definite ruling on these objections. But his report indicates that he considered some of the objected-to testimony inadmissible, for, he states, in connection with his finding of insolvency, that he excluded "what is hearsay or otherwise inadmissible." What was excluded is not shown.
Failing to certify a summary of the evidence, it is impossible to judge of the correctness of his findings without a reading and sifting of all the testimony; a labor on the part of the reviewing court which is one of the purposes sought to be avoided by these regulations. In re Kurtz (D. C. E. D. Pa.) 125 F. 992; Crim v. Woodford (C. C. A. 4) 136 F. 34, 38; In re Marengo County Mercantile Co. (D. C. S. D. Ala. N. D.) 199 F. 474, 477; In re Pearlman (C. C. A. 2) 16 F.(2d) 20, 22. In the last-cited case, the Circuit Court of Appeals stated with emphasis that, on petitions to review, the District Court should insist upon the referee complying with General Order 27 and the other laws regulating reviews, and refuse to consider them, unless that is done.
The declination by this...
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