Huntington v. Saunders, 64 F. 476

Huntington v. Saunders

64 F. 476 | U.S. Circuit Court for the District of Massachusetts | 1894

PUTNAM, Circuit Judge.,

It is conceded that the evidence available in the district court touching the merits of the objections to the bankrupt’s discharge has not been laid before this court, nor has like evidence been taken here de novo. Only such portions have been produced as are supposed to throw light on the seventh paragraph of the revisory petition addressed to us, and on some other propositions, which we will refer to further on. The seventh paragraph is as follows:

“On December 19, 1893, the bankrupt made an application to the court of bankruptcy, praying tliat tlie said specifications of objection be dismissed, or that the same be set down for trial at an early day; and on December 23, 1893, this application was brought to the attention of that court, in the presence of counsel for both parties, and the court summarily, without hearing any evidence or consulting the register, ordered that the specifications be dismissed for want of prosecution, leaving the petition for discharge pending. And thereupon this petitioner filed an application to the court of bankruptcy, praying that the petition for discharge, being the other part of the same i>roceeding, be also dismissed; but when this application was. on December 30, 1893, in the presence of both parties, brought to the attention of the court, it was refused, and summarily ordered to be dismissed, without hearing any evidence; and. without appointing' anytime for trial or hearing of the matter, the discharge of the bankrupt was forthwith ordered to be granted by the court, notwithstanding the certifícale of the register made on December 30, 1893, a copy whereof is hereto annexed, and notwithstanding the several objections to such discharge set forth in this petition.”

For auglit that appears in this proposition, the conclusion granting a discharge may have been correct, though reached by an irregular course of proceedings. The allegations of this paragraph, so far as essential to this hearing, are disputed; and thus an issue of fact is raised, which is not, and cannot be, determined by an inspection of the records of the district court, and upon which the appellant has offered for our consideration the testimony of witnesses, asking us to resort to parol proof for its determination. Clearly, the revisory power given by section 4986 of the Revised Statutes does not go to this extent. It does not give this court, the power, which may be exercised on an appeal in equity or a writ of error, of revising and correcting mere irregularities arising in the course of proceedings in the district court, nor any method of enforcing any orders or directions in that behalf. We have no power, under the section in question, except to “hear and determine the case” itself, *480either on the proofs in the district court, or, if allowable, on such additional new proofs as may be submitted to us. Nor is it permissible to. split up the proceeding in the district court, and offer it to us for revision piecemeal, as the appellant attempts to do. Our jurisdiction is limited to the result reached by the district court, or, at the most, to the determination of matters which appear by the record of that court to have been determined or done by it. In this case this power is limited to revision of the order granting a discharge, and perhaps of the order dismissing the specifications. The record presented does not enable us to determine whether, on the whole case, the appellant is entitled to have his specifications considered, or whether the bankrupt is or not entitled to a discharge, and therefore it offers nothing proper for our consideration.

But it is claimed that it appears of record that the bankrupt is not entitled to his discharge, because — First, there is no proper certificate of regularity from the register; second, because the bankrupt did not submit to an examination; and, third, because he did not secure the examination of his wife, as provided by section 5088 of the Revised Statutes.

Only the second of these was covered by the creditor’s specifications of the grounds of opposition to the discharge. But, waiving that fact, all three resolve themselves into, and are disposed of by, the general considerations which we have already stated. There is no rule of law which makes the register’s certificate of regularity a prerequisite to a discharge. Although section 5114 of the Revised Statutes requires, as such prerequisite, that it shall appear to the court that the bankrupt has in all things complied with his duty under the statutes, yet to make a register’s certificate essential would turn over the administration of justice to a subordinate official, who is not even a constitutional judicial officer. Even the duty to require a last examination, apparently imposed by section 4998 of the Revised Statutes, does not arise without an order. U. S. v. Clark, Fed. Cas. No. 14,806. The court has the undoubted power to satisfy itself without a register’s certificate, and even in the face of a hostile one. What the district court did in this particular is a part of its own mere course Qf proceedings, which does not appear of record, and over which we have no power. The expressions in Bellamy’s Case, 1 Ben. 426, 430, Fed. Cas. No. 1,267, and in other cases of like character, instead of impugning this position, support it. It appears that in the Southern district of the Second circuit there were rules of the district court requiring a certificate of regularity, and these also made the return of all papers by the register a prerequisite tó a discharge. It is absurd to suppose that a loss of papers by the register would perpetually bar the discharge of an innocent bankrupt; and, as both prerequisites stand on the same basis, it is plain that they were required only to aid the court, and that, like other rules of like character, they must yield when, under special circumstances, they stand in the way of the law.

The appellant claims that the record shows that there were orders for the examination of the bankrupt and his wife, but does not show *481that they were examined, or that the bankrupt was unable to procure the attendance oí his wife under section 5088 of the Revised Statutes, and that this raises a presumption, which cannot be met as the ease stands, arising against the bankrupt under section 5114, already referred to. Rut there is no rule of law that all the facts touching these orders which might have been shown to the district court should appear of record, and the- presumption the appellant suggests is contrary to all experience in the practical admmisl ration of justice. Non constat the district court did not know or find that neither the bankrupt nor his wife was duly notified to appear for examination, or that they were unable to appear' through sickness or some other misfortune, or that they appeared and the party who applied for the examination did not appear.

ft is to he borne in mind that, as tills record comes to us. we are not considering what we uiight or should find on a full presentation of facts, but what the district court might in legal possibility have found. Therefore, all these propositions come back to the considerations which apply to the seventh paragraph of the petition for revision.

The petition is dismissed, with costs.