120 F. 972 | D. Conn. | 1903
I am in accord with the referee in his decision upon the so-called “demurrer” filed December 27, 1902. The sufficiency of the creditors’ objections to discharge, set forth in the paper filed December 20, 1902, is in no sense attacked in the misnamed demurrer. The label placed thereon by the bankrupt or his attorney is unimportant; its single purpose was to point out an alleged error in the way the objections were signed and verified. It was equivalent to saying to those creditors and their attorney something like this: “Laying aside the question as to whether your objections have any force and merit per se, they cannot be discussed because you have failed to comply with the rules which are in force both in equity and bankruptcy.” The referee very properly regarded the paper as a motion to dismiss. He was also right in following In re Gasser, 5 Am. Bankr. Rep. 32, 44 C. C. A. 20, 104 Fed. 537, and the oath is certainly positive to the very last analysis.
I also agree with the referee in his treatment of the real demurrer, filed January 12, 1903, which he sustained on January 24, 1903, and I am content to leave the matter where his accompanying memorandum places it.
On January 27, 1903, the objecting creditors filed a bill of exceptions, contending that the referee ought not to havé received a second demurrer and acted thereon, and that position has been urged before me with considerable emphasis. My view of the soundness of the referee’s position must be apparent from the earlier portions of this opinion, but it really makes no difference how one looks at the matter. The action of the referee has in no sense harmed the objecting creditors, as will be clear after I have disposed of the motion to amend the original specifications. That motion is one which it is my duty to pass upon, and has properly been referred to me for that purpose. I have a high appreciation of the breadth and scope and liberality of the equity rules in the federal courts. I have endeavored, and shall continue to endeavor, to make such use of those rules as will promote justice and fair dealing between man and man; but in the case at issue there seems to be no secure position upon which discretion could gain a resting place, if sent forth in search thereof. The specifications of objection have absolutely no force. There is not even a twig in sight above the ground upon which an amendment can be grafted. Therefore it would be inconsistent, preposterous, absurd, and the exercise of profound indiscretion, to grant the motion.
Assuming that my reasoning is valid, it follows in syllogistic form that all proceedings before the referee since the filing of creditors’ objections have been unnecessary and irregular. Under these objections it would have been the duty of the referee to refuse to receive any testimony, and it is evident from his report that he Would have taken that position had occasion served.
Motion denied.
As the matter now stands, the referee recommends the discharge of the bankrupt. Bankrupt discharged.
