In re Weidhorn
| Decision Date | 08 March 1917 |
| Docket Number | 23319. |
| Citation | 243 F. 756 |
| Parties | In re WEIDHORN. |
| Court | U.S. District Court — District of Massachusetts |
Swift Friedman & Atherton, of Boston, Mass., for trustee.
William M. Blatt, of Boston, Mass., for Leo Weidhorn.
This case presents an important question as to the jurisdiction of the referee. From the certificate it appears that, more than four months before the institution of bankruptcy proceedings the bankrupt had conveyed property to his brother, Leo Weidhorn. There is no question but what, at the time of the bankruptcy, this property was in the exclusive possession of the brother under an actual claim of ownership. The trustee in bankruptcy filed with the referee what is called a 'bill of complaint' against Leo; it is in form and substance a well-drawn bill in equity, alleging that the conveyances in question from the bankrupt to the respondent were invalid, because made in fraud of creditors, under the statute of Elizabeth and Bankr. Act, Sec. 70a (Comp. St 1916, Sec. 9654). Upon the filing of this bill the referee directed that a subpoena issue under the equity rules of this court, and also issued a temporary injunction, as prayed for restraining the transfer of the property pendente lite. The subpoena was in the usual form of those used in this court, except that it directed the defendant to appear before said court 'sitting in bankruptcy,' and notified the defendant to file his answer 'in the referee's clerk's office.' It was signed by one of the deputy clerks of this court, and bore the teste and seal of the court. The bill was filed only with the referee, and no order was made in the proceedings, except by him.
The respondent seasonably objected to the jurisdiction of the referee, and afterwards filed an answer to the merits. By so doing, he did not assent to the referee's jurisdiction. Louisville Trust Co. v. Comingor, 184 U.S. 18, at page 26, 22 Sup.Ct. 293, 46 L.Ed. 413. The referee proceeded to hear and determine the merits of the controversy, and entered a final decree against the respondent, declaring the several mortgages or bills of sale in question to be void, and ordering the surrender of the goods in question to the trustee, and an account. Both the jurisdictional question and the merits of the case are certified for review. The proceedings are in no sense summary, nor are they so regarded either by the referee or by the parties. The referee's decision is that a trustee in bankruptcy may proceed before a referee by plenary suit, unlimited as to amount, to recover property never in the possession of the bankruptcy court.
The duties of the referee do not begin until the case has been referred to him; and his jurisdiction, therefore, includes only such parts of the bankruptcy jurisdiction of the District Court as are carried by the reference. The order of reference was made under General Order 12(1), which provides as follows: 'And thereafter all proceedings except such as are required by the act or these General Orders to be before the judge shall be had before the Referee.' 89 F. vii, 32 C.C.A. vii.
If the referee has jurisdiction of the present suit, it must be because it is covered by the words, 'all proceedings' in this Order.
'Proceedings' has, in bankruptcy, a well-recognized technical meaning. It has been defined under section 24 as:
'Covering questions between the alleged bankrupt and his creditors, as such, commencing with the petition for adjudication, ending with the discharge, and including matters of administration generally, such as appointment of receivers and trustees, sales, exemptions, allowances and the like, to be disposed of summarily, all of which naturally occur in the settlement of the estate. ' Baker, J., In re Friend, 134 F. 778, 67 C.C.A. 500 (C.C.A. 7th Cir.).
It does not ordinarily include suits by the trustee against third persons. The word is frequently used in the General Orders always, I think, in the same sense (e.g., in the preamble, and in...
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In re Pacific Homes
...The bankruptcy judge-referee denied the jurisdictional objections, the district court reversed the bankruptcy judge-referee, In re Weidhorn, 243 F. 756 (D.Mass.1917), and the Court of Appeals for the First Circuit reversed the district court, In re Weidhorn, 253 F. 28 (1st Cir. 1918). 20 Af......
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In re Purkett, Douglas & Co.
...but the objection was overruled. On review the District Court dismissed the bill upon the ground that the referee had exceeded his powers. 243 F. 756. Thereafter the Circuit Court of Appeals reversed the ruling of the District Court. 253 F. 28. Upon certiorari the United States Supreme Cour......
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Graham v. Faith
...objection and dismissed the bill for want of jurisdiction, on the authority of the decision previously made by the District Court in Re Weidhorn, 243 F. 756. From an order of District Court, affirming the dismissal by the referee, the trustee appeals. A petition to revise the decree of the ......
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