Potts v. Elliott, 336.
| Decision Date | 03 July 1945 |
| Docket Number | No. 336.,336. |
| Citation | 61 F. Supp. 378 |
| Parties | POTTS v. ELLIOTT. |
| Court | U.S. District Court — Eastern District of Kentucky |
J. A. Edge, of Lexington, Ky., for plaintiff.
Henry T. Duncan, of Lexington, Ky., for defendant.
The defendant, J. Nathan Elliott, is the duly appointed, qualified, and acting Referee in Bankruptcy for the Eastern District of Kentucky. He held this office at all times mentioned in the record. The plaintiff, Mary Burgin Potts, was duly adjudged a bankrupt on the 20th day of August 1943 and, by order of reference, her case was pending before the defendant, J. Nathan Elliott, as Referee in Bankruptcy.
Certain steps were had and hearings held before the Referee in the prosecution and administration of the bankruptcy matter and on January 6, 1944, the defendant filed his certificate with the Honorable H. Church Ford, United States District Judge of the court under which he was serving as Referee, alleging that the plaintiff here had disobeyed certain orders of the bankrupt court and should be considered by the District Judge in the light of contempt of court and adjudged such punishment as the Judge deemed proper.
Upon a hearing of the contempt proceeding it was determined by the District Judge that the order which the bankrupt (plaintiff here) had allegedly violated was not such an order, the violation of which was properly punishable for contempt and the case was remanded to the Referee for such further proceedings as might be necessary, without prejudice to any proceeding that might thereafter be instituted for contempt.
Thereafter this action for libel was instituted by the bankrupt against the Referee. The defendant filed a proper petition for removal under the Judicial Code, § 33, as amended, 28 U.S.C.A. § 76. The plaintiff has filed what is denominated "An Answer to the Petition for Removal and Plea to the Jurisdiction of the District Court of the United States and Plea in Abatement to the Removal." The answer denies all of the allegations in the petition for removal. There were, however, certain facts of which the court must take cognizance and which, even though there is an allegation and denial, are, of necessity, disclosed by the record.
The first is that the defendant is a Referee in Bankruptcy under an appointment by this court and is therefore an official of the court within the meaning of the removal statute. It cannot be seriously disputed that, as a matter of law, a referee in bankruptcy is such an officer of the court as was contemplated by the Congress when section 33 of the Judicial Code, and the amendment thereto, was enacted. He is in fact really more than an officer of the court as that term is usually understood. He is doing more than merely carrying out the orders of the court but rather acting in the place of the court and as the court in a judicial proceeding. My research on this question has failed to disclose any case in which a referee was involved. I find, however, that in the case of Buttner v. Miller, Fed.Cas.No.2,254, 1 Woods 620, as reported in the Federal Digest, Removal of Causes 22, an action to recover damages for alleged slanderous words spoken by a United States Collector of Customs, while in...
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Logemann v. Stock
...C.C.N.C., 50 F. 593; Ward v. Congress Const. Co., 7 Cir., 99 F. 598; Brann v. McBurnett, D.C.Ark., 29 F.Supp. 188; Potts v. Elliott, D.C.Ky., 61 F.Supp. 378; Yeung v. Territory of Hawaii, 9 Cir., 132 F.2d 374. On the other hand, in Ampey v. Thornton, D.C.Minn., 65 F.Supp. 216, the reasoning......
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Goldfarb v. Muller
...representations to his own official superior, and made certain threats to Stock of the assessment of further taxes.") Potts v. Elliott, D.C.E.D.Ky.1945, 61 F.Supp. 378, 379 (Referee in Bankruptcy was held to be an "official of the court within the meaning of the removal statute", then 28 U.......