In re Wooten

• Decision Date: 03 November 1902
• Parties: In re WOOTEN.
• Court: U.S. Court of Appeals — Fourth Circuit

118 F. 670

In re WOOTEN.

United States District Court, E.D. North Carolina.

November 3, 1902

PURNELL District Judge.

The referee certifies that on March 24, 1902, J. M. Wooten, son of the bankrupt, filed a claim against the bankrupt estate for $2,291.35, attaching to the certificate a copy of the claim, consisting of a cash loaned June 1, 1897, and interest $287; same, December 4, 1897, $200, interest $51.30; same January 1, 1900, $500, and interest $66; same, January 6 1900, $175, and interest $12.50,-- which claim was objected to by the attorney for creditors. The referee ruled that on account of the near relationship existing between the bankrupt and claimant the burden of proof is upon claimant to establish his claim by a preponderance of evidence. To this ruling attorney for claimant (who is also attorney for bankrupt) objects, excepts and appeals to the judge.

The referee is affirmed. Every creditor of a bankrupt estate must establish his claim by a preponderance of evidence,-- facts proved or admitted. This claim is not evidenced by any note bond, or memorandum, and there are many circumstances which should put the trustee and referee on inquiry. The fact that both the claimant and bankrupt are represented by the same attorney would bar such attorney from making admissions in favor of his client the claimant to bind his client the bankrupt. Representing adverse interests, to say the least, is against the ethics of the profession, and should not be permitted. It is not in accordance with the high standard which every lawyer should seek to maintain.

The proof of a claim in bankruptcy does not differ in any material particular from the proof of debt required in other proceedings in court. Such proof is provided for in section 57 (U.S. Comp. Stat. 1901, p. 3443), and form 31 (32 C.C.A. lxvi, 89 F. xlii). It should be sufficient to enable the officer passing on the claim to do so intelligently and judicially. See In re Eagles, 3 Am.Bankr.R. 733, 99 F. 695, where this court at some length pointed out the proceedings as to proof of claims.

No question is presented which requires argument orally by counsel, and the official engagements of the judge are such that this would be impossible for at least two months, which would be delay without benefit; hence the regular practice of setting these cases down for hearing and notifying counsel will not be followed. Being the claim of a son against his ...