Manson v. Inge

• Decision Date: 08 June 1926
• Docket Number: No. 2481.,2481.
• Citation: 13 F.2d 567,47 ALR 635
• Parties: MANSON v. INGE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

47 ALR 635, 13 F.2d 567 (1926)

MANSON v. INGE et al.

No. 2481.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1926.

Cralle F. Blackwell, of Kenbridge, Va., and George E. Allen, of Victoria, Va., for appellant.

Thomas W. Ozlin, of Kenbridge, Va., and W. S. McNeill, of Richmond, Va., for appellees.

Before WADDILL and PARKER, Circuit Judges, and ERNEST F. COCHRAN, District Judge.

ERNEST F. COCHRAN, District Judge.

The bankrupt, T. R. Manson, who is the appellant here, filed his petition for discharge, and the appellees, Sallie H. Inge and Mary E. Etheridge, who are unsecured creditors, filed certain specifications of objections to the discharge. The original specifications charged the bankrupt with knowingly and fraudulently concealing certain assets, and knowingly and fraudulently making a false oath to his schedules in relation to those assets. The matter was referred to the referee, and in the course of the taking of the testimony the bankrupt testified, among other things, relative to a certain paper which he produced, and which purported to be an assignment of certain insurance policies, which were claimed by the objecting creditors to have been concealed from his trustee. This paper bore a date on its face of July 5, 1922, and the bankrupt testified positively, more than once, that that was the true date, though cautioned that the paper itself showed that his statement could not be true. Afterwards it was conclusively shown that the true date of the paper was not July 5, 1922, but that it was written by the bankrupt some time in 1924, and only a short time before he testified before the referee.

Counsel for the bankrupt then requested that the bankrupt be recalled, as he wished to make some explanation in reference to this matter, and thereupon he was allowed by the referee to take the stand, and testified again concerning this paper, and admitted that it was not written on the date that it purported to have been written, but said that he was confused, and had not meant to testify that it was actually written on that date. Later the court permitted the objecting creditors, over the bankrupt's objections, to file supplementary specifications of objections to the discharge, setting up the making of the false oath by the bankrupt as to the date and execution of the paper referred to in his testimony in the course of the hearing on the original specifications of objections to the discharge.

Both the original and the supplementary specifications are verified by the affidavit of the objecting creditors to the effect that the statements contained, etc., "are true to the best of affiant's knowledge, information, and belief." The referee found for the bankrupt, but the District Court sustained the specifications of objections of the appellees, and denied the bankrupt's discharge.

The bankrupt assigns error in the decision of the District Court in three particulars, to wit: (1) In refusing to strike out both the original and supplemental specifications, on the ground that they were not verified "on positive oath as required by law, but upon `knowledge, information, and belief.'" (2) In refusing to strike out the supplemental specifications, on the ground that the making of a false oath by a bankrupt in a hearing upon the issues presented by a petition by the bankrupt for a discharge and specifications of objections by creditors thereto is not a ground for denying the discharge. (3) In not holding that the evidence did not show that the bankrupt had committed any of the offenses alleged against him as grounds for denying a discharge.

In reference to the matter of the verification of the specifications, the appellees insist: (1) That the specifications are not required to be verified, and therefore the alleged insufficiency becomes immaterial; (2) that the verification is sufficient; and (3) that the verification in any event might be amended.

The question whether the specifications of objections to a bankrupt's petition for a discharge should be verified by oath is one upon which there is a conflict in the decisions. The following cases hold that such specifications should be verified: In re Brown (C. C. A. 5th) 112 F. 49, 50 C. C. A. 118; In re Baerncopf (D. C. Pa.) 117 F. 975; In re Gift (D. C. Pa.) 130 F. 230; In re Abramovitz (D. C. Fla.) 253 F. 299; In re Dynamic Mfg. Co. (D. C. Mich.) 276 F. 408; In re Slatkin (D. C. Mich.) 286 F. 242. The last two cases, by the District Court for the Eastern District of Michigan, appear to be based in part, at least, upon local rule of that court.

In the case of In re Jamieson (D. C. Ill.) 120 F. 697, the court held that the specifications need not be verified. In the case of Koch v. Blumenthal & Co., 3 F.(2d) 395, 397, the Circuit Court of Appeals for the First Circuit cited the case of In re Jamieson as holding that the specifications need not be verified, and stated also that such had been the practice for a long period of time in the Massachusetts district. While the court in Koch v. Blumenthal & Co. did not find it necessary to decide the question, the opinion of the court apparently was that the verification was not necessary.

Upon reason and principle, we think the better view is that the specifications should be verified. Section 18c of the Bankruptcy Act (Comp. St. § 9602) provides that "all pleadings setting up matters of fact shall be verified under oath." The Supreme Court has defined pleadings as "the allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them." Tucker v. U. S., 151 U. S. 164, 168, 14 S. Ct. 299, 301 (38 L. Ed. 112). The specifications of objections to a discharge are clearly within this definition. They set forth allegations of fact which present an issue upon the determination of which the question of the granting or denial of the discharge is to be decided. They are therefore pleadings, and under the section of the Bankruptcy Act referred to should be verified.

In the case of In re Jamieson, supra, which holds that the verification is unnecessary, the court lays some stress on the fact that in the forms prescribed by the Supreme Court by General Orders in Bankruptcy, some of the forms have a form of verification, while form 58, for the specification of grounds of opposition to a bankrupt's discharge (89 Fed. LVIII), contains no form of verification. The argument is that the Supreme Court evidently did not think such verification necessary, else a form would have been provided therefor. The argument is very strong, but it should be borne in mind that the omission of a verification from form 58 affords only an inference that the Supreme Court thought it unnecessary — there is no direct expression of the Supreme Court upon the subject — and we do not think this inference should override the positive words of the statute, which require that all pleadings should be verified.

Even those courts which apparently are...