101 F. 553 | E.D.N.C. | 1900
(after stating the facts as above). The question presented by the foregoing finding of facts, of which the individual bankrupt partners ask a review, seems to be one of first impression. No opinion in point is cited, except two district court opinions, in which I. cannot concur; and, if there has been any other decision, it has been overlooked by . counsel, referee, and court. The decision must depend on a construction of the statute itself, gathering the legislative intent, from the provisions therein,— “from the four comers” of the act. .Section 52 of the bankruptcy act, after prescribing the duties of the clerk, says: “Clerks shall respectively receive as full compensation for their services in each estate a filing fee of ten dollars, except where a filing fee is not required of a voluntary bankrupt.” . This section, further provides for the fees of the marshal. The case at bar is not one of those excepted. Section 40 'of the act provides:1 “Referees shall receive as full compensation for their serv:
What do the expressions “in each estate” and “in each case” mean, as used in the statute, when a partnership files a petition in bankruptcy? Among the definitions peculiar to the act is that of “person,” which (section 1, subsec. 19) shall include partnerships, showing the legislative intent was to recognize firms as legal entities, separate and distinct from the individual members of the firm or partnership. Section 4, applying this definition, provides for a voluntary petition in bankruptcy of a partnership, and the next section (5), without the aid of the definition, provides expressly for such adjudication. Subsection (d) of this section provides that the trustee shall keep separate accounts of the partnership property and of tbe individual partners; (e) that the expenses shall he paid from the partnership property and the individual property in such proportion as the court may determine; that the proceeds of the partnership property shall be appropriated lo the payment of the partnership debts, and the net proceeds of the individual estate of eacli partner to the payment of the individual debts; the surplus, should there he any, after paying the individual debts, is to’ be applied to the payment of partnership debts, and vice versa; and (g) the court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership estate and individual (¡state so as to prevent preferences, and secure the equi table distribution of the property of the several estates. The following provision is for the administration of the partnership estate when all partners are not bankrupt. Other sections might he quoted to illustrate the provisions peculiar to partnerships, but the foregoing are sufficient to show a recognition of the partnership as a distinct entity, 'and the legislative intent to recognize different estates when a partnership and the individual partners are adjudged bankrupt, — ■ the sense in which the words “each estate” are used in the section providing for the payment of the clerk’s fees. Most of the decisions which have been made on this line apply to the commissions allowed by the act, and none has been cited or found applicable to the filing fees. In Re Meyer, 39 C. C. A. 368, 98 Fed. 976, the circuit court of appeals of the Second circuit took the same view, above expressed, as to the distinct entity of a partnership and individual partners, and field, in an involuntary proceeding against a firm and its members, no adjudication can be made against a partner who has not committed, or participated in committing, any of the acts specified in the statute as acts of bankruptcy. In general order No. 8 the supreme court seems to recognize this distinction as it does in the prescribed forms. 18 Sup. Ct. v. Form No. 2 (Id. xviii.) closes with a prayer that the firm be adjudged bankrupt, and No. 1 (Id. xi.) is the individual petition. In short, the proceedings are separate; the estates different. The only logical conclusion from the act itself, keeping in view the legislative intent deducible therefrom, “estate” having no
(.'■■The labors of the referee and trustee are greater in every case than- those of the clerk. The referee, by section 89, is required to prepare dividends, examine schedules, and,- if defective, cause them to be amended, furnish information to parties in interest, prepare records, prepare and file schedules of property and list of creditors, etc. In short, he is the court in many respects, as defined in section 1. As the estafes must be kept separate, the petitions and schedules being different, many questions may arise as to the estates of the firm or •individual .members, thus making several cases. Because the papers ■aré or may be filed in the same files case, jacket, or envelope does not, !of necessity, make them one and the same case. The case at bar ■’is a part- of the original proceeding of J. P. Wilson & Co., as was the ease of J. E. Pollock, recently decided, but they involve questions which could not arise in the original proceeding; hence are separate eases..- The trustee, too, whose duties are defined, must keep separate •accounts of each estate. In short, the act recognizes separate estates, and it is a logical conclusion from the act itself it was intended that each petition, set of schedules, and estate should in the bankhuptcy court constitute separate cases. “Case” has no technical restrictive legal meaning. Congress evidently used the word to apply as above considered, and not, while allowing to the clerk a filing fee in each estate, require the officers created by the act to administer, collect, distribute, and settle possibly half a dozen estates as one case. The duties of these officers are more responsible, burdensome, and laborious than those of the clerk, and it is not reasonable to suppose' congress intended the narrow construction to be given to the !act which would require of them so much more for so much less compensation in this peculiar class of proceedings. My conclusion is that the proper construction of the statute in proceedings where petitions are filed by a partnership to have a firm adjudged bankrupt, and a petition by the individual members of the firm, is that each petition and the accompanying schedules constitute a separate and distinct case; hence the referee and trustee are entitled to a fee of ten and-five-dollars, respectively, in each case, — one on the partnership petition, and one on the petition of each individual member. The general idea of the bankrupt law is economy in its administration, tout,.above this, the law is just — just-to .bankrupts,-just to creditors,
The case at har is one strong in point. The adjudication as to the firm was made at Raleigh by the district judge on the petition and schedules there filed. Afterwards petitions and schedules were filed at Wilmington, and ihe referee made the adjudications.' Here are separate cases certainly, and the proceeding is in strict conformity with the statute. There is no argument in the fact that the court at Wilmington is a part of the court at Raleigh, and the officer at Wilmington a deputy clerk. Under Act April 13, 1792, c. 17, there was but one district, known as “North Carolina District,” and this district was by act of February 13, 1801, divided into three districts, to be known as “Albermarle,” the courts of which were to be held at Eden-ton; “Pamlico,” the courts of which were to be held at New Bern; and “Cape Fear” (Clarendon)', the courts of which were held at Wilmington. There was one judge. It was provided by statute the district court should “appoint clerks for said courts, respectively, which clerks were required to inside and keep their records of said courts at the places of holding said courts whereto they shall respectively belong.” The courts of the district have been held at these places until, since 1872, the court formerly held at Eden ton has been held at Elizabeth City. The Western district of North Carolina was established by the act of June 4, 1872 (17 Stat. 217). The act of Aur gust 9, 1894 (28 Stat. 274), provided for a session of the district court at Raleigh, and re-enacted the law as it was before in regard to other courts of the district. There has been no other special legislation on the subject of the clerks, but, in deference to a decision of the comptroller of the treasury (1898), that there should he no complication in regard to the accounts of these officers, in which, it was held that there could be hut one clerk in the district, a clerk was appointed to reside at Raleigh, and the other clerks made deputy clerks. The decision referred to does not seem to be in conformity with law as contained in the acts of congress, but deferring to it saves trouble to the clerks in having their accounts settled. The several courts in this district are separate and distinct, according to the acts of congress. The clerk at Wilmington should, as required by section 51, subsec. 2, of the bankrupt act, have collected a fee of $25 in each petition filed. The payment of these fees is a condition precedent to filing a petition, when the case does not fall under the exception, as this one does not, and until paid the petitioner has no standing in the bankruptcy court. The petition for final discharge will not be heard when it appears the fees have-not been paid. Action herein will be deferred until the filing fees are paid. This ruling applies to the petitioners J. R. Barden, J. P. Wilson, and J. E. Pollock, bankrupts, trading under the firm name of J. P. Wilson & Co. The ruling of the referee is affirmed.
