Craddock-Terry Co. v. Kaufman

175 F. 303 | W.D. Tex. | 1909

MAXEY, District Judge.

By section 41a, cl. 4, of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 556 [U. S- Comp. St. 1901, p. 3437]), it'is provided:

“A person shall not in proceedings before a referee * * * refuse to appear after having been subpoenaed, or, upon appearing, refuse to take the, oath as a witness, or, having taken the oath, refuse to be examined according to law.”

And it is ftirthef provided, among other things, by section 41b, that:

“The referee shall certify the facts to’the judge, if any person shall do any of the things forbidden in this section,’.’ etc.

As it does not appear that the alleged bankrupt, Mrs. Kaufman, did any of the ’things forbidden by that part of the act quoted, the conclusion is quite evident that the certificate of the referee was not based upon that section of the act. It is equally clear that the certificate cannot be considered as a petition to review the findings of the referee, since it contains neither a ruling nor order made by him, and in other essential respects it fails to conform to the requirements of General Order 27 (89 Fed. xi, 32 C. C. A. xxvii). Collier’s Bank. (7th Ed.) p. 883. See section 39a, cl. 5, of the bankruptcy act; In re Reukauff (D. C.) 125 Fed. 251; In re Schiller (D. C.) 96 Fed. 400; In re Kurtz (D. C.) 125 Fed. 992; In re Russell (D. C.) 105 Fed. 501; In re Hawley (D. C.) 116 Fed. 428; In re Smith (D. C.) 93 Fed. 791. Xor canche certificate stand, for obvious reasons, as an application by the creditors for an order to examine the. alleged bankrupt as a witness. The question therefore decided by the court in the following cases cited by the referee: In re Davidson (D. C.) 158 Fed. 678; Skubinsky v. Bodek (C. C. A.) 22 Am. Bankr. Rep. 689, 172 Fed. 332—to which may be added In re Crenshaw (D. C.) 155 Fed. 271, and sought to be submitted by him in this proceeding, cannot be considered.

The following language employed by Judge McPherson in the case of In re Reukauff, supra, is appropriate and pertinent in this immediate connection:

“I see no indication anywhere that the judge may be required to answer questions before the referee himself takes action.”

The certificate should be dismissed, and it is so ordered.

* For other cases see same topic. & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes