416 F.2d 931 | 9th Cir. | 1969
Lead Opinion
Appellant appeals from the judgment of the District Court, affirming the order of the Referee in Bankruptcy, which removed appellant from the list of qualified trustees for the Eastern District of California. Appellant is qualified in the Northern District of that state. The record supports the findings of the Referee that appellant’s main office was in Eureka, outside the Eastern District of California and that he employed a secretary who was present in the Red-ding office in the Eastern District on an irregular schedule. She was present in Redding, in the Eastern District, only 15 to 20 hours a week. She was paid on an hourly basis, rather than on a regular monthly or bi-monthly pay schedule, and was also employed by a radio station. Appellant maintained an answering telephone service which received calls when his secretary was absent, which would be about one-half the regular 40-hour week. Appellant spent only two to four days a month in the Redding office in the months of October, November and December, immediately preceding this controversy. Indeed, the Redding office was used mainly as a warehouse to store items which appellant collected in various bankrupt estates which he administered. All pleadings in the bankruptcy cases were prepared in Eureka, the final accounts being generally prepared in the same city. Appellant’s residence in that city was 134 miles from Redding. The Referee had an opportunity to see, observe and pass on the credibility of the appellant on the witness stand. A few minor disputes on the facts were resolved against the appellant.
The Referee, who resided in the District, and who was familiar with local conditions, concluded that appellant’s opening of the office in Redding did not conform to the requirements of § 45
On the petition for review, the District Judge conducted a hearing. The evidence was essentially the same as that produced before the Referee. The District Judge held that the findings of the Referee were supported by substantial evidence and were not clearly erroneous. We, too, are bound by those findings. Tepper v. Chichester, 285 F.2d 309 (9th Cir. 1960); O’Hagan v. Blythe, 354 F.2d 83 (2d Cir. 1965); Flaxman, Coleman, Gorman & Rosoff v. Cheek, 355 F.2d 672 (9th Cir. 1966).
Even if we could say there was no real issue of fact, or that different inferences might not be drawn therefrom, and that we would have the right to reexamine the issues and arrive at our own conclusions under the teachings of Costello v. Fazio, 256 F.2d 903 (9th Cir. 1958) and Tepper v. Chichester, swpra, we would completely agree with the findings and conclusions of the Referee and the order of the District Court. Simply stated, the record before the Referee, the District Court, and now before us, does not support a finding that appellant was conveniently available for consultation within the meaning of § 45 and the decisional law on the subject.
We have considered appellant’s side attacks on the Referee’s findings and conclude they are without substance.
We affirm.
. 11 U.S.C. § 73.
“Receivers and trustees; qualifications Receivers and trustees shall be (1) individuals who are competent to perform their duties and who reside or have an office in the judicial district within which they are appointed; or (2) corporations authorized by their charters or by law to act in such capacity and having an office in the judicial district within which they are appointed. July 1, 1898, c. 541, § 45, 30 Stat. 557; June 22, 1938, c. 575, § 1, 52 Stat. S60.”
Concurrence Opinion
(specially concurring):
I concur in the result and in the opinion, except for the penultimate paragraph.
