115 F. 1 | 1st Cir. | 1902
This petition relates to the refusal of the district court for the district of Massachusetts to grant a discharge in bankruptcy to the petitioner.' The matter came before us on appeal in Osborne v. Perkins, in which, on November n, 1901 (50 C. C. A.
The present matter is a petition under the bankruptcy act of July 1, 1898, asking us to revise in matter of law the proceedings of the district court, because the specification of the objecting creditor in opposition to Osborne’s petition for a discharge was defective, in that it did not allege that the acts of the petitioner were knowingly and fraudulently done with reference to the matters charged.
There is also one other ground on which the present petition is based, to the effect that additional specifications were filed by the objecting creditor after the expiration of the 10 days allowed for the filing thereof, and after one set of specifications had been filed within that period. Even if there were any matter before us of which we could take cognizance, this last proposition would not avail, because an examination of the additional specifications shows that they were merely enlargements of. what had already been filed, and purely amendatory thereof; so that, therefore, it was clearly within the discretion of the district court to allow them.
The present petition contains many propositions, but what we have stated covers the substance of the whole of them. The pith of the answer to the petition is a denial of any error in the proceedings of the district court, and also, as put at bar by the respondent, that the petitioner has already been fully heard on the appeal, and cannot now come here on a petition. It is to- be regretted that the respondent did not make the case more full in the latter particular by filing from the records of the district court and from the proceedings in this court on appeal enough to show what were the issues tried, and what was there under adjudication. While it is well settled that we can take judicial knowledge of our own records, it is not at all clear that we are always required to do so. Machine Co. v. Goddard, 37 C. C. A. 221, 95 Fed. 664, 666. The proper and safe way of proceeding, even with reference to the tribunal in which the prior record remains, is by plea and proof. Nevertheless, as the practice with reference to a petition of the character now before us is not yet fully understood, even if it may be said to be thoroughly settled, we will avail ourselves of the right which we have to take judicial knowledge of our own proceedings.
Doing this, and turning to the appeal before us in Osborne v. Perkins, we find it appeared there that the discharge was refused by the district court on the ground, among other things, that the bankrupt, Osborne, “had knowingly and fraudulently concealed his property.” That case was brought before us on that question of fact, and we determined that the record was quite conclusive against the bankrupt on the issue of fraud. Thus the issue which would have been clearly presented by the objecting creditor if his specification had been perfect in the respects to which they are now said to be imperfect was fully tried in both courts.
We should add that it appeared on that appeal that no question as to the form of the specification was presented to the district court, nor by the assignment of errors. Yet the record on the appeal did show that the issue of fact as to fraud was raised on the evidence in the dis
Of course, we do not overlook the fact that, inasmuch as the statute of July 1, 1898, provides a special remedy by appeal in case of a refusal of a discharge, there is doubt whether a petition for revision, like this at bar, will lie in reference to that branch of the proceedings in bankruptcy in the district court. Nevertheless, inasmuch as the time limited for appeal is very brief, and inasmuch, also, as there may be proceedings in the district court, sitting in bankruptcy, for which appeals are provided, grievously erroneous on their face, and erroneous under such circumstances that their very errors may have deprived the party prejudiced thereby from the opportunity of an appeal, we are not disposed, until required to do so, to hold that, under peculiar contingencies, there may not lie a petition for revision with reference thereto after the time for appealing has expired. Perhaps, under such circumstances, the proceedings should commence by a petition to the district court in the nature of a bill of review or of a petition for a rehearing, as suggested by us in Re Worcester Co., 42 C. C. A. 637, 102 Fed. 808, 810. In the present case, however, all that we need say is that while, as decided by us in Smith v. Keegan, 49 C. C. A. 282, 111 Fed. 157, it was necessary, in order to defeat his discharge, that the acts of the bankrupt should have been knowingly and fraudulently done, yet, inasmuch as there was a full hearing on the merits in the district court when his application for a discharge came up to be there disposed of, and inasmuch as we must hold that he then knew the state of the record, and yet he made no objection on account of the pleadings, he must be held to have waived all such objections; so that, therefore, he can now have no remedy in reference thereto on any form of appeal.
The petition is denied, with costs for the respondent.
