In re Lacov, No. 68

No. 68 | 2d Cir. | Nov 25, 1904

PER CURIAM.

This is a proceeding in involuntary bankruptcy instituted by three petitioning creditors, alleging four different acts of bankruptcy. Answer was interposed, and, the cause coming on for trial before the District Judge, the alleged bankrupt made application that the issue be tried by the judge without the intervention of a jury, as prescribed by section 18, subd. “d,” of the bankrupt law (Act July 1, 1898, c. 541, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]). Said application was denied, and the order now under review was entered.

In criticism of the order it is contended that the section referred to provides that “the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury, except in cases where a jury trial is given by this act, and makes [sic] the adjudication or dismiss the petition.” And section la, cl. 16, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3419], defines “judge” as follows: “ 'Judge’ shall mean a judge of a court of bankruptcy not including the referee.” But the order complained of does not even purport to give.the determination of the issues to the special commissioner. The special commissioner, like a special master in equity, is merely a ministerial officer appointed by the court to assist in the performance of various services of a clerical character in the progress of the cause, such as the examination of long accounts and the taking of evidence upon issues of fact. When the evidence has been taken and returned to the judge with the opinion of the special commissioner, the judge will then consider the issues and determine the same. This method of taking testimony is the usual one in courts of equity, and the act does not provide that all the testimony shall be taken in the presence and hearing of the judge.

It is further suggested that this mode of taking testimony is more expensive. No doubt the courts should give due weight to the consideration that bankruptcy proceedings, as indeed all other litigation, should, not be allowed to become an unreasonable burden to the litigants ; but other considerations are also to be taken into account. In districts where the calendars are heavy the judge, if he should undertake personally to attend the examination of witnesses, would be wholly unable to keep up with the other branches of his judicial work, and delays would result so serious as to amount to a denial of justice.

Reference is made in the brief to the circumstance that the answer avers that the acts of bankruptcy now alleged were set forth in a former petition brought by three other creditors, were denied, and the issues thereon raised considered by the judge, who determined them in the bankrupt’s favor. It is not contended that there cannot be another trial of the same issues, when different petitioning creditors appear, but only that “the bankrupt is seriously prejudiced by a trial of them over again before a special commissioner.” The sole argument presented in support of this contention is that, the judge having determined the issues one way under the first petition, the special commissioner might determine them another way under the next one. But, as we have seen, the special commissioner, under the order now before us, has nothing to do with the determination of the issues. That is reserved for the judge who heard the issues under the earlier petition.

The order of the District Court is affirmed.