Reardon v. Pensoneau

• Decision Date: 18 March 1927
• Docket Number: No. 304,and 7665.,304
• Citation: 18 F.2d 244
• Parties: REARDON v. PENSONEAU (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 244 (1927)

REARDON v. PENSONEAU (two cases).

Nos. 304, Original, and 7665.

Circuit Court of Appeals, Eighth Circuit.

March 18, 1927.

Edward W. Tobin and Richard O. Rumer, both of St. Louis, Mo., for petitioner and appellant.

Paul A. Richards, of St. Louis, Mo., for respondent and appellee.

Before LEWIS and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

LEWIS, Circuit Judge.

The case is properly here on petition to revise, as will be seen, and the appeal is dismissed.

Pensoneau was adjudged bankrupt January 28, 1926, on his petition. He gave his occupation as "Fruit and Produce" and carried on a retail business of selling fruits and vegetables at 1213 North Third St., St. Louis, until he quit early in November, 1925. On March 1, 1926, Reardon, as trustee for the bankrupt estate filed his petition with the referee charging that the bankrupt had in his possession and control $8,000 as the proceeds from the sale of his stock of fruits, produce and vegetables, that said sum was assets of the bankrupt estate, and prayed for an order on Pensoneau that he deliver the money to the trustee. A hearing was had by the referee before whom the bankrupt appeared and testified, and was represented by counsel. Having heard the testimony the referee found "that between October 19, 1925, and October 28, 1925, the bankrupt had purchased from fourteen (14) different concerns, now his creditors, goods, wares and merchandise, consisting of apples, potatoes, grapes, cabbages, celery and onions of the total value of or in the total sum of $7,577.68," that the bankrupt admitted he received in cash for his stock between October 19th and 28th about $8,000. He accounted for $50 cash in his schedule, which was all the trustee had received. He claimed that he had lost the money in gambling. The referee after a full review of the testimony found that bankrupt then had in his possession and under his control $6,900 and entered an order that he turn that sum over to the trustee as assets of the bankrupt estate.

By petition the bankrupt caused the action of the referee to be certified to the Bankruptcy Court for review where the action of the referee was after hearing fully confirmed in all respects, and an order was entered by the court on June 7, 1926, that Pensoneau within ten days from that date turn over to Reardon, trustee, $6,900 in money. Pensoneau failed to comply with the order, and was cited to show cause, if any he had, why he should not be punished for contempt. He came in and the court discharged him by an order of date September 13, 1926, on the ground, as therein appears: "The court doth further find that such petitioner for commitment in contempt, Joseph M. Reardon, Trustee in Bankruptcy, has failed to establish that respondent, August Pensoneau bankrupt herein, is at this time financially able to comply with said order of June 7, 1926, and deliver to his said Trustee in Bankruptcy such concealed assets in the sum of Sixty-Nine Hundred Dollars ($6,900); It is therefore by reason of the finding as last aforesaid, ordered and adjudged that the said petition of Joseph M. Reardon, Trustee in Bankruptcy herein, for the commitment in contempt of said bankrupt, August Pensoneau for failure to comply with such order of the court be, and such petition is hereby denied, and that said bankrupt be, and he is hereby, discharged in and under such contempt proceedings."

It will be observed that the court put the burden on the trustee, not on the bankrupt. This is the error in law of which complaint is made, and we think it well taken. The order of the referee and that of the court on June 7th each found that...