United States v. Moore

• Decision Date: 12 November 1923
• Docket Number: 62.
• Citation: 294 F. 852
• Parties: UNITED STATES ex rel. PALEAIS v. MOORE, U.S. Marshal. [1]
• Court: U.S. Court of Appeals — Second Circuit

294 F. 852

UNITED STATES ex rel. PALEAIS v. MOORE, U.S. Marshal. ^[1]

No. 62.

United States Court of Appeals, Second Circuit.

November 12, 1923

Joseph G. M. Browne and Barnett E. Kopelman, both of New York City for appellant.

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (William A. De Groot, Asst. U.S. atty., of Brooklyn, N.Y., of counsel), for appellee.

Robert P. Lewis, of New York City (David B. Tolins, of New York City, of counsel), for trustee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

This is an appeal by the relator from an order made on April 23 1923, which dismissed a writ of habeas corpus. It appears that on July 21, 1922, a petition was filed in the District Court for the Eastern District of New York, praying that Adolph Paleais, the relator herein, be adjudged an involuntary bankrupt. Thereafter, and on August 12, 1922, the petitioner was adjudged an involuntary bankrupt. It also appears that subsequently a receiver was appointed in the bankruptcy proceeding, and thereafter, upon the application of the receiver so appointed an order was obtained requiring the bankrupt, the relator herein, to show cause why an order should not be made directing him to deliver forthwith to the receiver certain of his books and papers.

The bankrupt appeared at the hearing and opposed the application explaining in his affidavit, submitted in opposition to the motion, that the said books and papers so sought to be obtained by said motion had been left in an automobile by petitioner, and that said automobile had been stolen, together with the books placed therein, and with other personal property of petitioner, and that the said automobile had subsequently been recovered by the police department of the city of New York, but that the said books and papers, and certain other personal property of your petitioner, which were in the said automobile were missing.

It appears that as a result of this hearing an order was entered on October 3, 1922, in the District Court for the Eastern District of New York, which directed that Adolph Paleais, a bankrupt, turn over to the receiver his assets and effects, his cash book, ledger, check book, bill books, note books, canceled vouchers and unpaid bills, on or before 4 p.m. of October 6, 1922. From this order requiring the bankrupt to turn over his books and papers as above mentioned the bankrupt brought the matter into this court on a petition to revise, and the order was affirmed without opinion. 287 F. 1022.

On March 8, 1923, the trustee of the bankrupt's estate applied to the District Court for an order requiring the petitioner to show cause why he should not be adjudged in contempt of that court for failing to obey the terms of the order of October 3, 1922, or, in default thereof, why he should not be committed to the Raymond Street Jail, to be there detained until he complied with the terms of the order. It is to be noted that the order to turn over was one which in terms required him to turn over to the receiver, who had applied for and obtained the order. The motion to punish for contempt was made by the trustee, who had been appointed as such in the interval between the making of the turn-over order and its affirmance by this court. The petition to punish for contempt set up all the facts, and the failure of the relator to turn over the books and papers, either to the receiver or to the trustee.

Great stress is laid by the relator upon the fact that the order, for disobedience of which the relator is being confined in jail, required the relator to turn the books over to the receiver, and that that order is not binding upon the relator, as at the time he was adjudged in contempt the receiver was functus officio, because of the appointment of the trustee. In the view we take of this case, we do not need to consider the question thus sought to be brought here. This case is here to review the action taken by the District Court in dismissing a writ of habeas corpus. The appeal is from the order of April 23, 1923, which dismissed the writ of habeas corpus. The record discloses that the bankrupt was adjudged on March 22, 1923, to be in contempt of the District Court for his failure to comply with the order of October 3, 1922, made by that court, and that since April 11, 1923, he has been deprived of his liberty because of the contempt of which he was adjudged guilty; and we are asked in this proceeding to determine that in the order of April 11, 1923, the court erred in its judgment of the law applicable to the case. That is the sole question which is here upon this appeal.

In determining this question we do not sit to review the order of October 3, 1922, directing the relator to turn over the books and papers, or the order adjudging him in contempt on March 22, 1923. If the order of March 22, 1923, adjudging the relator to be in contempt, was erroneous, the remedy for a review of the validity of that order was by a petition to revise it. That order was made in a proceeding in bankruptcy within the meaning of section 24b of the Bankruptcy Act (Comp. St. Sec. 9608), which gives to this court jurisdiction to revise in matter of law 'the proceedings of the several inferior courts of bankruptcy' within our jurisdiction; and the order cannot be brought here for examination in any other way than by petition to revise. In the case of In re Shidlovsky, 224 F. 450, 140 C.C.A. 654, this court held that in such cases the only remedy is by petition to revise under section 24b. In Kirsner v. Taliaferro, 202 F. 51, 120 C.C.A. 305, the Circuit Court of Appeals for the Fourth Circuit held that an order requiring a bankrupt to turn over property to his trustee, and committing him until he does so, is reviewable only by petition to revise. See, also, Freed v. Central Trust Co., 215 F. 873, 875, 132 C.C.A. 7; Henkin v. Fousek (C.C.A.) 267 F. 557; Horton v. Mendelsohn, 249 F. 185, 161 C.C.A. 221; Henkin v. Fousek, 246 F. 285, 159 C.C.A. 15; Good v. Kane, 211 F. 956, 128 C.C.A. 454. We are not aware of any case which asserts a contrary doctrine.

This court recently, in Ex parte Craig, 282 F. 138, had occasion to consider at great length the right to employ the writ of habeas corpus as a method of examining into the validity of an order adjudging one guilty of a contempt of court and restraining him of his liberty as a punishment therefor. The conclusion to which we arrived in that case, and which we believe is amply sustained by the authorities, is that in a habeas corpus proceeding the appellate court examines only the power and authority of the lower court to act and not the correctness of its conclusions. The order restraining one of his liberty cannot be collaterally attacked in habeas corpus proceedings for errors and irregularities not affecting the jurisdiction. Adhering as we do to the doctrine therein announced, we hold that the only matter which can now be considered is the matter of the lower court's jurisdiction at the time it made the order adjudging the relator in contempt, and directing his confinement in the Raymond Street Jail until he purged himself of such contempt, or until the further order of the court. Since this opinion was handed down, this court's decision in the case of Ex parte Craig, 282 F. 138, has been affirmed by the Supreme Court of the United States. Craig v. Hecht, 44 Sup.Ct. 103, 68 L.Ed. . . . .

It is upon this record clearly disclosed that the court had jurisdiction of the subject-matter and of the person of this relator. The court has jurisdiction of bankruptcy matters, and the order was made in a proceeding in bankruptcy. It is also disclosed that the bankrupt participated in the proceedings from time to time in the bankruptcy court, being represented therein by counsel. As the District Court had jurisdiction of the person of Paleais, appellant herein, and jurisdiction of the subject-matter, and authority to enter the order appealed from, we have no right, upon this appeal, to inquire further into the exercise of its jurisdiction. If error was committed, the law afforded a remedy; but that remedy was not by habeas corpus.

Before concluding this opinion, we may perhaps properly call the attention of the court below to the form of the order of March 22, 1923. That order adjudged Paleais guilty of contempt, and committed him to jail, to be there confined and detained until he shall have purged himself of such contempt. When a court...