In re White
| Decision Date | 04 February 1918 |
| Docket Number | 2980. |
| Citation | 248 F. 115 |
| Parties | In re WHITE. v. WHITE. PENTZ |
| Court | U.S. Court of Appeals — Ninth Circuit |
This is an appeal from the order of the District Court, reversing the order of the referee in bankruptcy, and directing the discharge of the bankrupt, on the ground that the trustee had not been duly authorized to oppose the bankrupt's petition for discharge. The record shows that upon the filing of the bankrupt's petition the referee gave notice of a hearing thereon at a time and place named, at which time and place all creditors of the bankrupt and all other parties in interest might show cause, if any they had, 'why such application should not be granted. ' The notice was duly served upon the creditors, and the trustee applied for an order authorizing him to interpose objections to the discharge, and an order was given accordingly; the referee's report reciting: 'At the time set for the hearing no creditor appeared in opposition to the making of the order authorizing the trustee to oppose discharge. ' There was no certificate or order of the referee reciting that at the meeting the requisite number of the creditors voted in favor of authorizing the trustee to oppose the discharge. The trustee filed his specifications of objections to the discharge. On June 26, 1915, the bankrupt filed his answer thereto; but therein he raised no objection to the authority of the trustee to oppose the discharge. On the hearing thereafter had, counsel for the bankrupt, according to the report of the referee, interposed certain objections to 'the legality of the authorization given the trustee to take the opposition,' which were overruled. The referee reported that the point taken by the counsel was that the notice to creditors did not contain the statement that 'a meeting of creditors was called for that purpose ' The referee's report, filed December 28, 1916 contains the testimony taken, and his conclusion that the charges against the bankrupt had been proven, and that his discharge should be denied.
The District Court upon the hearing on the report of the referee found that the trustee had not been duly authorized to oppose the discharge, and upon that ground the discharge was ordered. Immediately thereafter the trustee gave notice to the bankrupt of his application for an order vacating the order of discharge, and for a further order referring the matter to the referee for the purpose of finding the facts constituting the authority of the trustee to oppose the application for discharge, and supported the same by affidavits of counsel for the trustee in which they stated that at the time and place of the meeting held pursuant to the notice to creditors, there were present creditors representing a majority in amount of the allowed claims, and that the trustee's application to oppose discharge was heard and considered by the creditors, and that they all announced and declared themselves to be in favor of authorizing the trustee to oppose the discharge. These affidavits stated also that, at the time of the hearing before the referee, the only objection made by counsel for the bankrupt was that the notice to creditors was insufficient. The trustee's petition for a rehearing also stated that the bankrupt's attorney did not question that actual authority had been given, but that he contended only that the authority was a nullity because the meeting had not been duly called, and that counsel for the trustee at that time stated that, if in the referee's opinion there was any question as to the authority of the trustee to oppose the...
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In re Slatkin
... ... meeting of creditors called for that purpose.' ... A ... trustee, therefore, derives whatever authority he has to ... oppose a discharge from the creditors, not from the referee, ... nor even from the court. In re Hockman (D.C.) 205 F ... 330; In re White, 248 F. 115, 160 C.C.A. 255 (C.C.A ... 9). Unless, then, the creditors of this bankrupt, at a ... meeting called for the purpose of considering the matter, ... have by a formal vote expressly authorized the trustee to ... oppose the discharge of the bankrupt, such trustee is without ... any ... ...
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In re Verbitsky
...objections." The Hockman Case (205 F. 330) was cited with approval by the Circuit Court of Appeals for the Ninth Circuit (In re White, 248 F. 115, 160 C. C. A. 255), where it was also held that the objection that the specifications and the pleadings failed to show the trustee's authority wa......
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In re Torgovnick
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In re Miller
...a discharge from the creditors, not from the referee, nor even from the court. In re Hockman (D. C.) 205 F. 330; In re White, 248 F. 115, 160 C. C. A. 255 (C. C. A. 9). Unless, then, the creditors of this bankrupt, at a meeting called for the purpose of considering the matter, have by a for......