Toplitz v. Walser
| Decision Date | 13 July 1928 |
| Docket Number | No. 3759.,3759. |
| Parties | TOPLITZ v. WALSER. |
| Court | U.S. Court of Appeals — Third Circuit |
Milberg & Milberg, of Jersey City, N. J. (Samuel Milberg, of Jersey City, N. J., of counsel), for appellant.
Gross & Gross, of Jersey City, N. J. (Joel Gross, of Jersey City, N. J., on the brief), for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
A referee, finding that the bankrupt had in her possession money which she had failed and refused to deliver to her trustee, entered against her a turnover order which on review the District Court affirmed. She did nothing. The referee on petition of the trustee then certified the bankrupt to the District Court for contempt and that court, finding that her failure to obey the order was willfully obdurate and contumacious, entered against her a decree for contempt from which she took this appeal.
The evidence is of a character that calls for a brief statement of the applicable law. We are, of course, conversant with the two proceedings which not infrequently arise in situations of this kind — one for a turnover order and the other for contempt because of disobedience of such an order — and are aware of the legal distinction between them, which, briefly repeating what we have many times stated, is that the issue in a turnover proceeding is whether the bankrupt had property within his possession or control at the date of bankruptcy which he had not delivered to his trustee. Being fundamental, that issue must be raised and decided first. When on a finding of that fact the referee enters a turnover order and the order is either not reviewed or, if reviewed, is affirmed by the District Court, the fact of possession or control of property and its retention and concealment by the bankrupt becomes settled beyond future controversy. In re Epstein (D. C.) 206 F. 568; Epstein v. Steinfeld (C. C. A.) 210 F. 236; In re Stern (D. C.) 215 F. 979; Schmid v. Rosenthal (C. C. A.) 230 F. 818. When that issue has thus become finally determined and the bankrupt has failed to comply with the order by turning over to the trustee the property so adjudged to be possessed and concealed by him, the next step is a proceeding for contempt. In the contempt proceeding the question of the bankrupt's possession or control and concealment of property, having already been determined, is not in issue. The sole question is whether the bankrupt is presently able to comply with the turnover order previously made and, accordingly, whether he is disobeying that order. Frederick v. Silverman (C. C. A.) 250 F. 75; Davidson v. Wilson (C. C. A.) 286 F. 108. It therefore devolves upon the bankrupt in the latter proceeding to show how and when the...
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