95 F. 415 | N.D. Cal. | 1899
It appears from the facts certified by W. A. Coulter, the referee having jurisdiction of the case, that,
“Judge Reynolds: In behalf of thé witness, I object to any examination of this witness, as there appears to have been no showing made to the referee before making the order for his examination; * * * and the referee has no authority to take any examination without some showing as to the materiality of the testimony and what the plaintiff proposes to ask. In this case, as I understand, there is no showing at all. Am I right, Mr. -Referee? Referee: My decision will be given when you get through. Judge Reynolds: Well, I .have a right to know, if your honor pleases, whether there is a showing before you, and the witness has the right to know. * * * Referee: I decline to recognize you as the attorney for the witness. Judge Reynolds: I speak for the witness-. Referee: The records of this court are open for examination, but I decline to recognize you as the attorney for the witness.”
. The referee overruled the objections interposed in behalf of the said Hyde, and required him to be sworn as a witness, and in so doing gave the following reason for his decision:
“The examination of this witness is made upon the authority of section 21 of the bankruptcy act of July 1, 1898. It has been decided by the federal courts in many cases, under a similar provision of the act of 1867, that all parties who are competent witnesses are liable to undergo such an examination, ‘though they ma'y be parties to proceedings which the trustee in bankruptcy has instituted or intends to institute for the purpose of setting aside liens procured by tliem, or preferential transfers made to them.’ - So it is held In Re Feinberg, 2 N. B. R. 425, Fed. Cas. No. 4,716. It has been further held that ‘such parties will be obliged to answer any and all questions relating to the acts, conduct, or property of the bankrupt, and their dealings with him, even though their answrers will give to the trustee evidence which he may use in a subsequent civil action against the examined party.’ It has been so decided by the federal courts in the cases of In re Fay, 3 N. B. R. 660, Fed. Cas. No. 4,708; In re Pioneer Paper Co., 7 N. B. R. 250, Fed. Cas. No. 11,178; Garrison v. Markley, 7 N. B. R. 246, Fed. Cas. No. 5,256; and in many other cases, which it is unnecessary for the court to cite. In the cases of In re Comstock, 13 N. B. R. 193, Fed. Cas. No. 3,080, and In re Fredenberg, 1 N. B. R. 268, Fed. Cas. No. 5,075, the court decided that the person undergoing this examination is a mere witness, and is not entitled to counsel. He is not a party to the proceedings, and has no rights at stake.”
Tlie ruling made by the referee is correct, and fully sustained by the cases to which he refers. The order requiring Hyde to appear as a witness, and be examined concerning the acts, conduct, and property of the bankrupt, was valid, although there was no formal application therefor, showing what questions were proposed to be asked upon such examination, or the particular facts in relation to which he was to be examined. The statute does not contemplate that any such showing shall be made as the basis for an order of this character. The simple application or demand for such an order by any of the persons named in section 21 of the bankruptcy law is all that is required to support it. Of course, when the person whose attendance is required appears before the referee, his examination must be relevant to matters concerning the acts, conduct, or property of the bankrupt, and it must be presumed that the referee will
