*1 proof it is not for this solely fault, and seamen based so as to negligence the law of and twist torture a law liability not of for fault but it in law
make result liability injuries. potencies radiating unmindful that “the
One cannot be holding.” Hawks may go beyond a decision the actual Hamill, 52, opin- U. S. 58. Lower courts read the
v. a not unnatural alertness to of this Court with catch
ions precise A deci- beyond
intimations ratio decidendi. influence, unwittingly, like exerts an however
sion this lower to avoid re- judges
well calculated lead court by deciding compassionately plaintiff
versals cases confident that such decisions are negligence
these likely be reviewed here.
I would have the remanded to the District Court cause conformity opinion. proceedings
for further and Mr. join
Mr. Justice Jackson Burton Justice
in this dissent. TRUSTEE IN BANKRUPTCY. ZEITZ,
MAGGIO February 9, 1948. 38. October 1947 . Decided
No. Submitted *3 petitioner. brief Schwartz submitted on
Max Sidney Freiberg on
Joseph Class and submitted brief
respondent. opinion of the delivered the
Mr. Justice Jackson
Court. petitioner, president the was and man-
Joseph Maggio, Inc., was
ager Service, adjudged Luma Camera In 23, April January 1942.
bankrupt turn Maggio
trustee asked the court over direct to have alleged
a considerable amount of merchandise and taken still
been concern
Maggio’s possession hearing, or the referee control. After by and convinc-
found that “the Trustee established clear described, hereinafter
ing that the merchandise bankrupt, knowingly
belonging to the estate of respondent fraudulently by [Maggio]
and concealed is now
from the Trustee said merchandise herein respondent.”
in the under control by
A the District turnover order issued and was affirmed the Circuit unanimously and then affirmed opinion other Appeals, Circuit,
Court of Second without Maggio, prior of its Zeitz
than citation own cases. 2d denied F. 241. Petition for certiorari was 324 U.S.
Court. 841. pro-
As failed or its to turn over Maggio After hear- contempt. him in
ceeds, Referee found Maggio Court affirmed and ordered
ing, the District further order of complied he or until jailed until affirmed. of Appeals the Circuit Court Again
court. F. 2d 951. know “Although we affirming
But the Court said: keep we must cannot Maggio can, he and must thus pretend straight face impos- Maggio ‘to do *4 which first direct affirm orders ” perform it.’ punish him refusal to
sibility, and then judg- its deliberate literally read as this is
Whether decoy in- something or is of of the law the case
ment problem, the our to the decla- to attract attention
tended Court, supervisory in view of its is one which this
ration Fraud- bankruptcy, ignore. cannot over courts
power present difficulties bankruptcies probably more
ulent do elsewhere. they the Circuit than in Second
the courts views conflicting in within are reflected
These conditions they are which we need Appeals, Court of detail 2d Schoenberg, in In re 70 F.
already set out the books: Sofranski, Pinsky-Lapin In Danish v. 93 F. 2d re
321; 424; Co., Goldsmith, 776; 977; 2d v. 2d Seligson
& 98 F. 128 F. Marinello, 674;
Rosenblum v. 133 F. 2d Robbins Gott
better, Jeskowitz, 843; 39; F. 2d Cohen v. F. 2d 2d Maggio,
Zeitz v. 145 F. 241. problem by
The is illustrated ease. The court this says in proceedings
below the turnover suf- was that, established
ficiently towards the end of short- in
age bankrupt’s occurred this It stock merchandise. regard proved
seems it as Maggio personally also possession
took corporation’s vanishing assets.
But this abstraction Maggio occurred several months bankruptcy
before and year over a before the turnover applied
order was for. goods evidence that the
then in were or control of was the Maggio
proof of his onetime supplemented “pre- aby
sumption” that, explanation absence of a credible disposition of his Maggio goods, he continues
possession of them their proceeds. Because Appeals felt constrained by opinions to adhere to “presumption” or “fiction” it affirmed the turnover says
order. Now it it is convinced that in reality Maggio
did not retain goods proceeds or their up to the time
of the turnover proceedings and that order the turnover unjust. But it considers the turnover order res
judicata injustice beyond reach on review of the
contempt order.
The proceeding which leads to commitment consists of
two separate stages easily out-of-joint become be-
cause the defense to the second often in substance
effort to relitigate, perhaps judge, before another the issue
supposed to have been settled first, because proof
while burden of rests the trustee, frequently
evidence of the facts is entirely possession of his adver-
sary, the bankrupt, who is advantaged by nondisclosure.
61 interdependent but turnover and separate Because these
contempt procedures important are to successful bank-
ruptcy administration, principles we restate some the risk
applicable each, to conscious however of the that we
may do new than to old controversies. more stir settle
I. procedure expressly
The turnover is one not created Bankruptcy judicial
or Act. It is a inno- regulated by the expedi- and efficiently
vation which the' court seeks
tiously accomplish prescribed by statute, ends
which, however, largely judicial left the means
ingenuity. bankruptcy juris-
The courts of are “with invested such in equity
diction law and as will enable them” to bankrupts collected,
“Cause the estates of reduced to to be
money distributed, and and determine controversies . 11 11 (a) (7).
relation thereto . . .” S. C. And § U. money property
the function to “collect and reduce to upon laid trustee. 11 S. C. estates” also U. (1). imposed upon A (a) duty 75 correlative
§ fully effectually to turn over all of his and corporation interests, and and case of a 11
duty upon officers, rests directors or stockholders.
U. S. C. 25.§ duty, compel persons discharge
To these their a com- imposes criminal sanctions. It
statute denounces concealments, falsifications, mu-
prehensive frauds, list of that would
tilation of records and other acts defeat estate, pre- collection of the assets of
obstruct heavy penalties imprisonment of fine or or both.
scribes (b). It power U. S. C. also confers on courts § persons “in arraign, try punish violations, but procedure” regulating
accordance the laws of trials 11 (a) U. And (4). specifically crimes. S. C. §
provides for trial jury Bankruptcy of offenses against *6 are Special provisions (a), (c). 11 S. C. §42 U.
Act. such offenses. prosecuting vigilance to induce
also made any report to and trustee referee duty of the
It is the has been offense believing for such grounds
probable thereupon who Attorney, States
committed to the United In to referee. report and investigate to required
is to the present the matter he is directed to case proper a proper if thinks it not without and he jury delay,
grand to the General and report must the facts Attorney
case he (e). 11 52 instructions. U. S. C. §
abide his compensate to authority no bankruptcy of have
Courts prescribed these applying lack of zeal in any neglect or to ends of civil remedies by perversion
criminal sanctions Appeals the Court of punishment, judges as some of
of done.
suggest being prosecutions do not recover
Unfortunately, criminal Court, trustee, as well
concealed treasure. And the as property. The Act vests commanded collect any bankrupt, including all of trans-
title to creditors, trustee, in fraud of in the as of the date
ferred 11 bankruptcy, 110, U. S. C. filing petition §
of all or position pursue plenary him in sum- puts possession. remedies to obtain
mary bankruptcy petitions
To entertain the the trustee “jurisdiction of all contro-
court not is vested equity”
versies at law and in between trustees and adverse concerning property acquired
claimants claimed 11
trustee, given U. C. but it also is a wide discre- § S.
tionary jurisdiction accomplish Act, the ends of the orders,
or in the issue words the statute “make such process, judgments, and in addition to
such enter such for, may specifically provided necessary
those 11 provisions
the enforcement of the of this title.” (a) (15).
U.S.C. §
In applying grants power, bankruptcy these courts of procedure fashioned the as one summary their of administration.
necessary accomplish function summarily the court to retrieve concealed
It enables withhold-
diverted assets or secreted books of account the would which, plenary suits,
ing pending the outcome
intolerably delay obstruct and administration. When evidence,” turn-
supported by convincing “clear and neces- appropriate
over order has been sustained as an Rus- step Bankruptcy Act. Oriel v.
sary enforcing Dasher,
sell, v. 358; Cooper S. U. 106. See U. S. Wilkinson, *7 Bank
also Farmers & Mechanics National S.503. U. primarily get property at procedure
But this is one the pushing than to at a get
rather debtor. Without basis too be said that the theoretical
analogy far, may remedy law actions
for this is found common the of unlawful possession
recover for detention —detinue dis- replevin taking and for their unlawful
chattels —as to recover from or trover
tinguished trespass actions prop- or value of the
damages withholding for the for the exactly modern does not
erty. remedy Of course the proce- any overlapping
follow of ancient and often these specific property of object possession but the
dures, —is — pro- possession may for extend
the same. The order are of, if property disposed they of that has
ceeds been essentially But it is
sufficiently identified as such. indemnification, than
proceeding restitution rather rem; the proceeding of a
with some characteristics existing of chat-
primary condition of relief is by the of proceeds capable being
tels or their surrendered It a cause is in no sense
person ordered to do so. based conduct embez- damages
of action for tortious such as improvident dissipation or
zlement, misappropriation
assets. remedy make nature and derivation of the clear satisfactorily when appropriate only
that it is property proceeds, its
establishes existence
and defendant at the time thereof have taken the date
proceeding. While some courts directed, inquiry
bankruptcy as the time to which proceeding particular
we do not consider resort if, instituted, at
appropriate the time it already dissipated, been no matter when proceeds dissipation put prop- occurred. Conduct which has
erty beyond proceeding the limited reach of if it an crime, or, referee, violates order of contempt,
criminal but acts, reprehen- no such however an
sible, issuance of order a duty which creates warrant
impossible performance, punishment so that can follow.
It necessary say should not be fla- it would be a
grant process abuse of to issue such order to exert
pressure on friends relatives to ransom the accused
party being jailed.
II.
It is evident the real issue as to turnover orders proof
concerns put the burden of that will be on the and how
trustee he can meet it. This Court said *8 supported
that the turnover order must be and “clear Russell,
convincing evidence,” Oriel 278 U. and S. proof
that includes that the been has abstracted property bankrupt
from in possession the estate and is of the the
party proceeded against. It is the burden of the trustee produce this however difficult task evidence, his
may be.
The trustee show usually missing can assets in possession
were or under the control of the bank-
rupt bankruptcy. at the time of past To bring this
possession to the date in down involved the turnover the trustee has
proceedings, been allowed the of benefit presumption
what possession is called that the continues possessor explains
until when and how it ceased. inference, which might
This be entirely permissible in rigid presumption into
some to have settled cases, seems regard without apply
which it is said the lower courts particular case.
its reasonableness in fiction, and no such
However, presumption, no such found None can be bankruptcy
is created statute. dealing procedure.1 of this Court decision any judicial pro- from
Language can, course, gleaned of be existing may once
nouncements and texts that conditions until are shown to presumed they
be to continue per- enough, useful generalizations, But such
changed. are problem particular case, of a
haps, solving some all with or without applied cases,
not rules of law to be
reason. Ap- the Court authority imposes upon no either
Since law, presumption or Court
peals Bankruptcy any forbid or dis- disputable, or which would
either conclusive other evi- or
pense inquiry with further consideration not be is- should
dence orders testimony, merely proof on that at some
sued, approved appeal, of the was in or control
past time and other party, unless the time element factors
accused Under a fair and reasonable inference.2
make that some resolving un- permissible,
circumstances present known, to reach the conclusion
known from possession. process, Such proof previous
control Supreme Appeals . . the The Court of itself said: “. in 'presumption’ here in favor of the fictitious
never decided 951, 954.
voked. . . .” 157 F. 2d posses presumption of continued treated the Other circuits have passes, finally ceases “grows until it
sion as one which weaker as time 321) Ellis, one (C. Marin v. 15 F. 2d and as C. 8th in
to exist” A. permits”
“only strong circumstances as the nature of the time intervenes and as circumstances
“loses its force and effect as missing longer is no indicate *9 Fraidin, (C. v. 149 F. goods proceeds” in Brune or their C. A. 4th (1947) 325). L. Rev. 789
2d See also Comments 95 U. of Pa. (1947).
42111.L. Rev. 396 is, fact,” “presumption a of characterized as
sometimes from process reasoning than a
however, nothing more another, which fact argument
one fact to infers proved. from which is
otherwise doubtful fact at one had a given
Of the fact that a man time course, to property weighed is a be
item circumstance properly he be found to whether
determining yesterday’s a later date. But the inference from
it at posses- thing, permissible is that from one what twenty ago quite another. kind
sion months With deal? it salable or consumable? do we Was might warranted of continued inference not con- applied to books of account are
when inappropriate under the marketable, or but quite
sumable perishable if merchan- applied circumstances
same Such an demand. goods
dise salable considerable person thing applied thrifty to a
inference one when after involved savings being his account
who withdraws purpose except get apparent
in an for no accident, creditor, of a see Rosenblum beyond
it the reach tort Marinello, 2d when 674; very 133 F. different being fast-living sold
applied a stock wares make proceeds up
adventurer the difference using outgo.
between income aon
Turnover orders not be issued or affirmed should from
presumption thought to arise some isolated circum-
stance, possession, such as onetime when the review- finds from the record the order is
ing court whole law unjust.
unrealistic and rule of requires No nor ever so
judgment fettered; be thus course, due to
prescribed. Of deference is the trial court’s
findings prescribed fact, rules, our but even this
presupposes the trier of fact be actually exercising merely some judgment, applying supposed
his not rule In any event, rules of evidence
of law. as to inferences reason, are to aid it. And facts override
67 any appear any allowing to be reason for there does not a reviewing to override reason when presumption
such
turnover order. little to generalities these do
We are well aware that only by The latter can be resolved concrete issues.
solve mind- judgment of trial good courts, sound sense and and responsible
ful that the order issue as only should adjudication ability deliver,
final and recoil experiment coercion which will questionable if judicial process proves time
to the discredit improvident requires the
adjudication to have been to abandon
courts its enforcement.
III. proceedings, developed turnover judicially
Unlike the of a lawful order for disobedience proceedings separate provisions two specifically authorized
are court is Act and are of two kinds. The distinct all lawful by persons obedience
authorized to “enforce imprison- fine and
orders, by imprisonment fine or (a) (13). This the civil U. S. C. creates §
ment.” now before us. obedience,
contempt proceeding coerce contempt proceeding provision is also for a criminal
There being court also penalize
whose end is contumacy, contempts persons for committed “punish
authorized to 11 (a) (16). C. These con-
before referees.” U. S. § disobedience referees are defined to include
tempts before provides and the statute order, to a lawful
or resistance who, proceeding Judge before the District summary doing,” warrant him
if such as to so “is upon him or commit conditions.
may punish accused 69. §
11U.S.C. only us a coercive or proceeding sought before
The petition asked commitment
enforcement sanction. turnover complied with the aforesaid
“until he shall have he “shall was until
order.” The commitment with said contempt by complying of such
purged himself order of this Court.” or until the further past dis- imposed whatever punishment
Thus no failure contingent upon penalty was
obedience, every of civil con- obey. This is a decisive characteristic for enforce- commitment
tempt truly and of the coercive *11 con- said, is leaves the which, as often purposes,
ment pocket.” in his prison own key of his “carry
temnor to Commission, Exchange 330 & Co. v. Securities
Penfield of contempt now a us civil S. 585. We thus have before
U. Russell, in Oriel v. kind that was before the Court
the same not say, therefore, is 358, 363.
278 U. What we S. designed contempt proceedings
applicable to criminal vindication of the court’s
solely punishment proceeding a authority, such, example,
flouted mutilating or books of account destroying
sentence one for in court had ordered
or his
him to turn over. whether, in this con- question
The now arises as to may inquire justi- into the
tempt proceeding, the Court however
fication for order itself. It is clear the turnover separate and, one when proceeding
that the turnover final it becomes
completed and terminated subject judicata to collateral attack
res and not ago we settled Oriel proceedings. long This Russell, 358, and, think, rightly.
v. U. S. we settled 278 increasingly to, especially
The resorted court order
by statute,3 performance to coerce of duties under sanction
3 statutory examples provisions, For see Interstate Commerce Exchange 1934, 15
Act, (3); 12 Act of U. S. C. 49 U. S. C. Securities § (u) 1935, (c); Utility Holding Company 15 78 Public Act § 1934, (r) (d); 47 S. C. C. 79 Communications Act U. U. S. § (2); (d); Act, C. 161 Fed 409 Labor 29 U. S. National Relations § § 49; Pro Act, Administrative eral Trade 15 U. S. C. Commission § (c); 1946, and Atomic cedure Act of C. 1946 ed. U. S. § (d). (1947 Supp.) Energy C. A. Act 42 U. S. § the law if we contempt. It would be a disservice to rule a con- depart long-standing
were to from the
tempt proceeding open does not to reconsideration alleged to have been
legal or factual basis of order con-
disobeyed original and thus become retrial of the procedure a court’s order com-
troversy. enforce not be so incon-
manding forbidding act should experimentation with disobedience.
clusive as to foster issue,
Every precaution should be taken that orders only legal after proceedings,
in turnover as other appears when it that obedi-
grounds are shown and power party being is within the coerced
ence final, disobedience
the order. But when has become as to whether justified by re-trying
cannot be the issues United place. in the first
the order should have issued Workers, Oriel v. 258; Mine 330 U. S.
States United
Russell,
recognize this
appears
rule, for the record case *12 order was
include the evidence on which the turnover the learn outside of only by going
based. We could of it would be case, to in former
present record the that was made to this application
available because proceeding.
Court to that earlier review Appeals right therefore think the Court of inso-
We subject only
far as it concluded that the turnover order is attack, and that alleged
to direct infirmities cannot be in a
relitigated contempt or corrected subsequent
proceeding.
IY.
But this that the lower “must thus does mean courts a an im-
affirm orders which first ‘to do direct
possibility, punish perform then him for refusal to and
it’ ”? by Appeals
Whether the statement the Court of
it knows cannot with the turnover order Maggio stop record, we do not the justified this by contempt and regarded turnover We have inquire. them, as to review petitions for certiorari
orders, and by fact to be solved questions of
usually raising only expect which we analysis of evidence
the careful advantage of courts. place
take in the two lower parties the having
the and the District Court referee a cold them, judging of on
and before instead witnesses Appeals for each The Court of
record, is considerable. familiarity advantage of closer
circuit also referee practices of the capabilities, tendencies, know the better Judge.
and District Both lower courts practice than
fruits course of decision actual of their loath to venture Consequently,
can we have been we. cases, especially where the turnover particular
review of District Court approval referee,
order carries Appeals. of the Court appears affirmed
However, the court below relying the earlier case
order for commitment presumption to raise
finding previous possession continuing to the time of commit-
wilful disobedience rejected by
ment, though that conclusion is even protests court judgment. While the good
court's the time continuance of from presumed
such is unre- the time the turnover order bankruptcy order
alistic, have affirmed the seems time of
extending presumption although contempt proceedings,
order to the time had
persuaded Maggio presumption overcome the
if it rebuttable. were *13 contempt proceeding begin must
The fact that the of the turnover order does mean that acceptance explanation to Maggio
it must with it. makes no end or the disposition property
the whereabouts affirmed, possess. declared him to But time earlier order and initiation elapsed issuance of that between He does tender contempt proceedings in this case. earnings proceedings
evidence of the turnover after his after up 1944; unemployment until November his and of allegedly failing health;
that time due to his his
family the inter- obligations living during manner
vening period. has also sworn that he nor his He neither
family any proceedings has at time since the turnover any personal or which could be
possessed property real repeats demands. And he satisfy
used trustee’s that possesses question.
his denial he contempt pro-
It is Court in clear that the District
ceeding significance Maggio’s attached or no little no indi- testimony, although gave that incredible. The District
cation evidence was Siegler,
Court in 31 F. 2d opinion only cites In re Appeals Judge which the Court of reversed District bankrupt’s testimony, because he believed the had
who, contempt. Siegler him for
refused commit case Appeals
and other decided the Court of appar- cases
ently Judge led the District to conclude no decision than commitment of Maggio approved
other would
by that court. reject Appeals
Nor did the Court of this view. Indeed
it affirmed commitment for con- because present inability comply
sidered either is of no rel- presumption of con-
evance or that there is an irrebuttable if the establishes
tinuing ability even record
present fact. It to be of the view inability seems if presumption indefinitely, not permanently, stands affirma-
and can be overcome when he accused him
tively disposition property by shows some do not be-
subsequent proceedings. to the turnover We Russell, Oriel v. required by
lieve these views are U. S. in the
358, despite conflicting opinion, some statements *14 af- compelling of Appeals
which the Court construed as contempt decree.
firmance the in “a motion to the Oriel case that
This said com- bankrupt obey for failure to an order of the Court
mit the bankruptcy in turn to the receiver the
to over a contempt and is to be treated as bankrupt civil
the administer the assets of step proceedings
mere the to and in aid the seizure bankrupt provided by law, as proper
of those assets and their distribution. While punishment— mere they punitive, they are are not sense
they coercive, are administrative but intended bankrupt, perform-
compel, against reluctance him lawful at 363. duty.”
ance
of his
Of one for principle this powerless perform would reverse
he is it purely punitive, to describe proceeding
and make the
charitably. time, nothing At add the same would That Court in the Oriel case estate.
contemplated appears language no such result opinion from a Appeals
it borrowed Circuit Court of which, out that pointing after confinement often failed “
produce money goods, said, failed, Where it has supplied
and where a interval of reasonable time has
previous evidence, sufficiently defect made bankrupt’s
certain what was doubtful before, namely, the
inability to obey always released, he has been
and I need hardly say always that he would right released, to be as soon as the fact becomes clear that he ”4 obey.’
can Moreover, upon the authorities relied opinion5 Chief Justice Taft’s make it that his clear contemplate
decision did not that a coercive it appears
order issue when there is at that should Epstein (cited 358, 366, quoting Epstein from In re 278 U. S. Steinfeld), 206 F. 568, 570. 278 U. S. 364.
time no wilful disobedience but incapacity to
comply.6 Indeed, quotation from In re Epstein, cited
supra (note 4), also stated p. at 569: “In the pending case,
6The late Chief following lay Justice said “. . . the seem to us to nearly
down view,” more Toplitz Walser, the correct and cited v. 27 F. 196, contempt 2d a (at p. 197) case in ques which it is said “The sole
tion bankrupt is whether the presently comply is able to with the previously
turnover order and, accordingly, made he whether
disobeying Epstein Steinfeld, 236, that order . . . v: 210 F.
a proceeding, in which the Court delineates both turnover contempt procedures
and contempt and states that a order should not
be present ability issued unless comply; there is to Schmid v. Rosen
thal, 818, case, citing Epstein Steinfeld, supra; 230 F. a turnover v. Silverman, 75, reciting
Frederick v. contempt case, 250 F. a
necessity present ability comply; Pensoneau, to Reardon v. 18 244, holding
F. contempt case, 2d the evidence there insufficient to present inability comply;
establish to United ex rel. Paleais v. States
Moore, 852, involving contempt, 294 F. a commitment for stat
ing present ability “. . . the court should be satisfied of the
bankrupt Frankel, comply ....”; 539, contempt to In re 184 F. present
case in which held the evidence was insufficient to show
inability comply; Adams, 722, 833, to v. 25 98 Ga. S. E. Drakeford “clearly requiring present ability State case to to be (Gilbert’s satisfactorily established”; Collier, Bankruptcy ed.,
and and
1927) clearly 652. The cumulative effect of these authorities seems that, bankrupt’s possession, standing present
to be while a denial
alone, may inability produce sufficient to establish his satisfied, proceeds, if or its the Court is from all the
properly it, present ability not the before that the has
comply, the commitment order should not issue. See, example, American
Other decisions are to the same effect. Wallis, 68, 464; Dodd, cert.
Trust Co. v. 126 F. v. 142 F. Samel Holden, Nisenson, 912; 203 646; In re F. In re
den. 201 U. S. 182 511; 229, 621; McNaught,
F. cert. den. 229 In re 225 F. U. S. 673; Michelson, 116; Davison, Dittmar v. In re 143 F. 281 F. Marks, 1018; Elias, 448;
In re In re 240 F. Freed v. Cen 176 F. 601; Illinois, Nevin, 873; tral Trust In re 278 F. Co. 215 F. 469; Goldstein, Magen, 702;
Johnson v. 2d In re 14 F. 2d F. Milens,
id., 288; Walt, 588; F. 18 F. 2d In re 17 F. 2d Clark v. 848; Mielziner, 457;
2d den. 279 S. Berkower 29 F. 2d cert. U. bankrupt's believe other, may in the court any he now in or control of is not
assertion inquiry event goods, or the the civil money at end . cases been
The of difficulties these source question the same proceedings the two successive pro- goods or their produce ability points of time. issue, but of different
ceeds is at as impeached, or attacked
earlier order not be avoided sought and no relief can be proceedings later But the trustee command. when institutes
against tenders issue proceeding commit, later he disobedience, wilful which the court is
present against *16 latter must
asked to direct its issue sanctions. just any issue, and the is entitled to
tried as other court all to it. The turnover order
consider evidence relevant Weisberger, Tabak, 209; In re
In re
also ed.) 624-681; (4th pp. 681- Remington, Bankruptcy pp. 8 C. J. S.
5 369,
686; pp. 6 752-753. Am. Jur. § 7 following involving contempt for failure Similarly, orders cases (278 365) illustrating of alimony rules evi pay
to were cited U. S. at as here concerning ability comply, the same as are laid
dence to “much Smiley Smiley, 962, 577, 169 P. bankruptcy”: v. 99 Wash.
down for being undenied, ability comply of commitment
affidavit to lack to as Barton, erroneous; Barton v. pay held failure to justify commit 727, 179, sufficient
99 Kan. 163 P. evidence held not, course, can although . . The defendant
ment it is said “. beyond something his do which is for the failure to
be committed Gerzabek, 318, App. 230, P. In re 208 Von power. .”; . 58 Cal. . inability comply effectual to be “the most showing of said Hurd, 443, N. Hurd v. contempt order; 65 W. Minn. answer” ato 455, Heflebower, 674, N. E. 728, v. 102 Ohio St. Heflebower Fowler, 227, evidence Fowler 161 P. defendant’s Okla. pre inability which would to establish insufficient
vented commitment. at date to be
adjudges defendant as to non- also cut off evidence but does it inquiry, problem the real Thus, time?
possession at the later contempt pro- in the admissible the evidence
concerns down a attempt lay we do not Of course
ceeding. subject. rules on this or detailed set of
comprehensive and concrete specific be formulated
They will have to problem. of the aspects different present
cases on motion “. . . case,
In Court said: Oriel’s this considered that can be evidence
commitment since happened that something has
the evidence that time that showing made since
turnover order was part of the inability on the newly arisen an
there This order.” comply with the turnover to mean Appeals has construed the Court of
language that he no to show can offer the accused ab- evidence, if goods not now have the
does and how he dis- showing of when of an affirmative
sence that he never tend to indicate goods, might
posed findings of the to contradict them and hence
had that the Appeals Court of with the agree
order itself. We contempt pro- attacked not be
turnover order posses- judicata issue is res
ceedings because application of speaks. But as which it at the time
sion only that contempt cases-means in these rule civil establishing prior the order bankrupt, confronted *17 is the thereof when continuance at a time
possession, aby prima confronted inference, thereby is
reasonable a only with successfully meet he can
jade case He cannot chal- comply. present inability
showing of but possession, adjudication previous
lenge present establishing lack him from prevent not
does as to his if no evidence course, he Of offers
possession. stands the turnover or comply with
inability to he do so Nor does does not meet the issue.
mute, he
evidence or his own denials which the court finds
incredible context.8
But permitted deny may present be his give any present evidence of conditions intervening events which him. corroborate The cred-
ibility of his denial weighed is to be light of his
present everywhere circumstances. It is admitted that if
even he committed, jail is he will not be held forever
if he does not comply. His denial of given is
credit after demonstration that a period prison not does
produce goods. The fact that he been under the has prison gates
shadow of coupled enough, with his type
denial and above, to con- mentioned
vince the court that his not a wilful disobedience which
will to coercion. yield
The trial court is obliged weigh not merely two
facts, that turnover order issued and has has
been but all obeyed, properly the evidence before it in the
contempt proceeding in determining whether or not there actually present ability and whether failure
toso do constitutes deliberate jail defiance which a term
will break. duty
This clearly nowhere been more expressed
than in the Oriel case:9 . . There ais possibility,
course, of error and hardship, but the conscience judges
in weighing the evidence under clear perception of the
consequences, together with the opportunity of appeal and
review, if properly taken, will restrain the courts from
8These supported by conclusions are the cases cited in the Oriel laying case as nearly down “more the correct view.” See note
supra. Gompers Of course cases such as (233 v. United States U. S. 604), (266 Michaelson v. United States 42), Pendergast U. S. (317 412) United States U. S. (267 and Cooke v. United States U. S. 517), involving all contempt charges, criminal are of no relevance here, as we deal contempts. with civil text, p. See 10. 364. U.S. at *18 hand and bankrupt’s rights on the one
recklessness the law on the
prevent flouting . . .”
other. in to be balancing required a careful was said
Such im- methods proceedings because “coercive Cer-
prisonment probable are are foreshadowed.”10 as careful
tainly require the same considerations in the relevant weighing the evidence
conscientious imprisonment
contempt stage, At proceeding. that is imminent. probable and foreshadowed —it
not weighing, inevitable.
And, without such it becomes
y. Appeals Court of deal here with a case which the
We not was persuaded bankrupt’s
was that disobedience however, District Court did appears,
wilful. It that in the and evaluate
not, proceedings, weigh automatically to before it but felt bound almost prece- Maggio’s
order deference clear commitment Moreover, Appeals. Court
dents established al- order Appeals
the Court of affirmed the commitment deliberately
though it was Maggio convinced but contention that he was
disobeying had established his On Oriel case would comply. findings
unable such Maggio’s discharge jail. if
require already even he were hardly good judicial
It with case, consistent with
administration, findings to order his commitment his
require immediate release. law misapprehension such has led both
When considering below without adjudicate rights
courts light controlling law, in the
essential facts judgments will and remand vacate the the case proceedings District Court for further consistent opinion. principles laid down this Court’s Manu-
facturers’ 321, 327, and cases cited.11 Lustgarten, v. 266 U. S.
Gerdes what in this in view of practice appropriate is case
That below. concerning judgments herein
has been said and remanded. Vacated in Separate opinion of Mr. Justice Black, Mr. Rutledge concurs.
Justice in found that bankruptcy referee
August 9, belong-
petitioner possession had of certain merchandise him to turn
ing bankrupt corporation and ordered In these proceeds bankruptcy
or the over to the trustee. 1945)
contempt proceedings (April 18, the District Court petitioner prove longer had failed to he no
found that him to be possession property,
had of the ordered proceeds jail property in until he delivered the or its
held
to the trustee. petitioner charged embezzling
Had the been after the 1943 turnover doubtless property
same judicata even that a doctrine of res argue
no one would him from to show that introducing
barred wrong,
turnover were and that findings or its
truth he did not have
proceeds on, before, August 9, 1943, or after either findings of fact
April 18, why 1945. One basic reason judicata
in a turnover would be res proceeding proof proceeding
an embezzlement is that the burden first, In types proceedings.
is different in the two proceeding, convincing proof”
a turnover “clear and second, “proof beyond
enough; embezzlement, proof is required.
reasonable doubt” is The burden of United, 1, 10; v. S. Kay States, Pub 303 U. Prairie Farmer Cf. 156, 159; v. Indiana Farmer’s Pub. S.
lishing Co., U. Co. 226, 228. 277 U. S.
Buzynski Co., S. S. Luckenbach judgment in the embezzlement because a
heavier case embody punishment, a crimiñal while a
conviction merely does not —it is an order judgment property, delivery
the surrender of similar to an order of replevin
in a suit.
There is no such for different measurements of reason
proof contempt cases; consequen- and embezzlement imprison-
tially, Fine, the two are almost identical.
ment, or both can result from a conviction of either. against if this out judgment
Here carried *20 prison petitioner, might, compelled
the he to remain in
longer than he would had he been convicted sentenced that, a of It if the court charge
on embezzlement. is true petitioner possession in had of finding correct that property proceeds (and it),
the or if he still has he keys jail pocket,
carries the of the in his because he can at property proceeds any
turn the or over to the trustee get question
time and thus his freedom. The crucial petitioner contempt in this was whether proceeding
to possession proceeds 5,
he had the or its June of against
1945. And crucial was decided question that trial that the
petitioner by holding the court without a prove beyond
evidence was sufficient to reasonable doubt petitioner property. still had of the
I am a unwilling agree application of doctrine judicata people jail sending
of res results in a
contempt upon proof substantially of court measure of a support
the same that which would rendition of as an judgment plaintiff promissory
civil for the note,
open account, or some other debt. All proceedings, court designated
whether civil or criminal of court given name, fine, prison
or some other which result
sentences, both, my judgment require should proof, proof measure of and that measure should be
same Gompers United See
beyond reasonable doubt. v. United 610-611; Michaelson
States, U. S. States, v. United Pendergast
States, 42, 66-67; 266 U. S. 412, 417-418.
317 U. S. assumption that written on the foregoing assumption legal,
turnover-contempt procedure Cir- opinion of the I share the accept. I do not is unauthorized procedure that this Appeals
cuit take permitted to it should not be
by statute and apparently fraud as prosecutions place of criminal too much procedure savors This whole
was done here.1 for debts— practice imprisonment
of the old discredited here, peti- if pay. For people are unable
debts which whether dispose property, wrongfully did
tioner probably liable crime, he was guilty
or not he was if not to, similar action, basically sort of civil
in some been obtained judgment Had a for debt.
actually, one if it would be I doubt case, him a civil in such
against bankruptcy court could period that at this
thought obey what jail for his failure petitioner
have thrown debt pay order to in effect a court
would have been judgment.
embodied merchan-
Furthermore, finding *21 evidential foundation may rest on an as of 1943
dise but it is too turnover order support
firm a civil enough prison. Accepting support a sentence to
shaky to 1 may not, fiction, via a proceeding a turnover would hold that “We deprive a man prosecution so as to a criminal be substituted of by jury. right, right trial We would constitutional a bade of respondent is that too, consequence of fiction
note, that one since, in offense, if he is later punished for the same be twice (b), imprisonment his S. C. A.
dicted for violation of U. 52§ add that nowhere as a defense. We would
contempt will not serve Congress even intimated intention Bankruptcy Act has solely judge-made results, they stem from a and that
authorize such Service, 2d In re Camera 157 F. gloss Luma on the statute.”
953-954. present or 1945 however, presumption of
finding, possible 1941 or
possession from runs to basic procedural result which counter
achieves a of laws. For the District
practices system in our prosecution advantage of a said, gave the which, itself, was held relieve it
“presumption” of in a proof petitioner’s guilt further case offering and personal liberty of his
where forfeiture prov- petitioner the burden upon it threw
sought;
ing his innocence.2 I others, would re- reasons, among foregoing
For the Appeals, Court of of the Circuit judgment
verse the and that no petitioner be released
directions that him against be instituted proceedings
further obey the turnover order.
based on his refusal to Frankfurter, dissenting.
Mr. Justice myself I find
This of those rare cases where is one main views
substantial with the direction agreement thereby led to a different conclusion. opinion,
of an but am snarled disentangle a upon are
Too often we called In this principles. legal
skein of into thread of facts straight snarl a opinion seems to me to
case, the Court’s legal principles. into skein of confusing
thread of facts liti- involving in a the same prior
It case was the record bankruptcy of a rule
gants that invited correction denied review.1 in the We
administration Second Circuit. said: “Re contempt, the District Court holding petitioner In accounting satisfactorily
spondent not sustained his burden has denial of disposition his mere
for the of the assets following finding of fact: “4. It then made the under oath.” comply with said Maggio, wholly
respondent, Joseph failed to F. explain to the satisfaction he has failed to comply.”
this court his failure
1 324 S. 841. U.
82 precludes
The record this case correction, such but the opinion
Court’s whip an effort to the devil round the
stump. precise question may before us be simply stated.
The District Court bankrupt ordered the to turn over
goods by withheld him from the trustee. On the basis prior
of two cases,2 Appeals the Circuit Court affirmed order, per curiam. 145 F. 241. 2d These earlier
cases in turn a previous relied on All case.3 three enforced
a rule of the Second goods Circuit that bankrupt day presumed of bankruptcy are to con
tinue regardless his of the time that elapsed. all cases, In three the Circuit Court of
Appeals had although affirmed the turnover orders it was
maintained bankrupts could obey not them.4
Likewise, in all cases, that three court declared its had
impotence change regarded what it anas untenable rule
of bankruptcy administration, fashioned although this Court.5 In imprecating language almost
review and reversal by this Court in these were inv cases In
ited.6 one of cases, petition these filed
2 Gottbetter, Jeskowitz, Robbins v. 843, 2dF. and Cohen v.
better, 843, 844; Jeskowitz, F. 2d Cohen v. F. 2d
(concurring opinion J.). Frank, 5Presumably, inability Ap this avowed of the Circuit Court of
peals for the Second Circuit prior to free itself from its decision own
in this situation is principle not the reflection of a similar to that
which binds past precedents. the House of Lords to its It must judges
attributable to the fact that the Second has six Circuit circuit
who never sit en presumably they banc and that deem it undesirable majority
for the panel of one to have a different view that of majority panel. of another 979; F. 844;
6 128
2d at
83 Then came the denied.7 certiorari, this with this us, now before involving litigants prior case sure, To order.
Court’s refusal to review no carries substantive petition of a for certiorari
the denial proof to it here relevant
implications. Reference affirmed order, as finality with which the turnover Appeals, was invested.
the Circuit Court bench, Russell, unanimous 358,
In 278 U. S. Oriel experience wide membership judges
including for con- upon held that a citation bankruptcy law,8
with the issues
tempt compel obedience of a turnover order That
adjudicated by relitigated. order could not be that what nothing
case decided if it did not decide bankrupt withheld adjudicated-
turnover order —-that still bankrupt estate and was property
certain from the he was ordered day of this on the control starting point over—is for con-
to turn it the definitive to the turnover
tempt proceedings to exact obedience proceed must contempt proceedings In short,
order. it. We go turnover order and cannot behind
from the v. Russell: relevant sentence Oriel ignore
should on the motion commitment
“Thereafter that can is the evidence be considered order happened since the turnover that has
something newly time there has showing made that since bankrupt part on the inability
arisen an the turnover order.”9 review cases, did not seek two of these In the first hint, case, bankrupt took the but Court; in
in this
the Jeskowitz
denied
this Court certiorari. case, concurring, Judge in the Robbins A. Hand’s observation N. justices of a court of pertinent: “. . . all the 134 F. 2d at is also rights, guardians of civil Justices exceptionally alert which those members, unanimously Stone, concurred Holmes, were Brandéis and opinion of Taft . . . .”
in the Chief Justice S. at 363. U. At the today
The Court reaffirms Oriel v. Russell. application of practical
same time it makes inroad on the record10
Oriel v. Russell. On identical virtually
reverses where Oriel v. Russell affirmed. The nature Court’s
scope of the inroad are uncertain because the
opinion, understanding, leaves undefined my the best *24 v. respect
how the District is to both Oriel Russell Court today’s
and decision. aspects problem
About some of our there to ought dispute.
be no all agreed We are that while the bank-
rupt relitigate cannot the determination of a turnover goods day
order that he had such and such on the order, duty
the he can avoid the of obedience to that if he of situation the change
order “can show after him relieving compliance.”11
turnover order from
right to be relieved from the obeying turnover order
sustaining inability perform, proof the burden of to on questioning order,
circumstances not the turnover has if disputed. Again, judgment
never been of civil con-
tempt bankrupt jail is rendered the sent to until obey command, to
he chooses the court’s he will
kept him keeping longer gives promise there when no performance. pronounced.12 Oriel Russell so so, bankrupt
And since the the fact that had goods day
of the on the of the turnover order is a fact
10 Appendix. See
11 278 at 364. U. S. “12 produce money 'I have known brief confinement to the
promptly, justifying incredulity, thus the court’s and I have also failed,
known it to fail. Where it has and where inter a reasonable supplied previous of time evidence,
val has the defect in the and has sufficiently before, namely,
made certain what was doubtful
bankrupt’s inability obey order, always he released, been hardly say always right
and I need that he would have the to be ” released, as soon obey.’ as the fact becomes that he clear can not 366, quoting Judge opinion U. S. at from McPherson’s In re
Epstein, 568, 570. 206 F.
that cannot be controverted or relitigated because his goods day very on that was the thing simple
adjudicated, the case reduces itself ques- failure Where,
tion: obey
bankrupt mute, stands offers no as to a change
of circumstances since the order or offers evidence of a justifiably disbelieve,
kind District which the Court the Dis- proof preclude
has he met his burden of so as to enforcing
trict from obedience commitment contempt?
civil District Court findings
On the record precise is noth- question presented.
this is now There Judge statement
ing record, except else Frank’s perform although
below was ordered to perform.13 him impossible
the court knew that was derived from “impossibility”
But this assertion of was not It contempt proceedings. derives
the record in these he Judge hostility familiar what deems the Frank’s *25 ordering in presumption court’s rule of
unfairness of his his convic- Judge merely repeats Frank here
turnover.14 against like that rendered
tion turnover order that turn could goods is an order to over not be
Maggio
13 order, Maggio comply with the “Although we know that cannot can, pretend and must keep straight that he must face and
we impossibility, Maggio thus affirm orders which first direct ‘to do ” 2d punish perform 157 F. at 955 then him for refusal to it.’ Judge concerning
(italics supplied). this the Frank made statement proceedings, possession order
presumption of continued in turnover him addressing the in the not his remarks to record before
and was began
contempt proceeding. The with this sentence: “Were dictum involving validity impression the of a
this case of first reasoning.” 951, accept F. 2d 953. we not such 157 would hostility to the basis of the
The “thus” in his statement indicates feels of a the court unable
turnover order because virus which lower contempt proceedings. automatically infects the
to extract but which contempt sustained, the order the turnover order once “With
necessarily followed.” Id. at 954. But that dam the
turned over. was water over the proceeding. legal significance To it when
contempt give
enforcement of the turnover order is issue is utter mouth.
contradictory things the two corners of the saying relitigated—
It that turnover order cannot be the adjudication
that the go we cannot back the that turn
bankrupt goods had the at the time he ordered to goods,
them we know he did not we over—but so respect
contradict the turnover order and do not judicata.
res
I myself cannot reconcile saying that we adhere to yet reject
Oriel v. only meaning, namely, Russell we go judicial cannot behind the determination made
by the turnover order bankrupt on such and day
such a had the goods. Moreover, enumerated upon opinion15
authorities relied in Chief Justice Taft’s contemplate
make it clear that his decision did that a contempt appears
coercive order should issue when it bankrupt no or, introduced evidence what same, evidence that properly satisfy by establishing incapacity
District Court since In case,
the turnover order.16 the District Court was 358,364. 278 U. S. following The Chief said lay Justice “. . . the seem to us to down nearly Toplitz Walser, view,”
more the correct and cited 27 F. 2d contempt (at a Third Circuit p. 197) case in which it is said “It upon
therefore devolves [contempt] pro the latter
ceeding property previously adjudged to show how and when the passed
his or control had out of his con
trol .... The trouble with the evidence in proceed
ing, properly review, here for is that it is directed to *26 bankrupt’s possession property issue of the and control of at the bankruptcy definitely against
date of raised and decided her in the proceeding Though .... not in form this is in substance a upon finally
collateral attack the now established turnover permissible.”; Epstein Steinfeld,
which of course is v. 210 F.
236, proceeding, a turnover in which the Third Circuit delineated procedure, Circuit, different from in the Second that followed in finding bankrupt pro- that the warranted had
entirely adjudication contradict of the no evidence to
duced when he told goods
turnover order that he had the was bankruptcy
whereby shortage if the found at the time referee a question of automatically entered, and the
the turnover order was possession ability comply order was left
present or with that presumption of con
open possible contempt proceedings, for possession being applied proceedings since the bank
tinued such occurring
rupt of events since the bank had show that reason 160) (cf. Eisenberg,
ruptcy In re 130 F. 2d he was unable to
(this bearing on instant issue as to distinction has no real possession); presumption of continued
either collateral attack or the case, Rosenthal, 818, v. a Third Circuit turnover
Schmid F. Silverman,
citing Epstein Steinfeld, supra; 250 F. v. Frederick v. citing Epstein Steinfeld, supra;
75, contempt a Third Circuit case contempt Pensoneau, 244, Eighth Circuit
Reardon v. 18 F. 2d an
case, holding bankrupt had not met his burden of establish that the 245-46) (at inability comply, pp.
ing present which it is said bankrupt’s possession and
“They establish orders] [turnover day the referee’s order was made. burden
control on $6,900. disposition him to show what had been made showing relieving loss of its him of an intentional that is made
Until control, presumed he still has it. ... it must bankrupt escape an order for the surrender cannot denying he has ‘by simply under oath that
belonging to his estate Moore, 852, Paleais v. 294 F. a Second ”; States ex rel.
it.’ United following contempt, corpus commitment for
Circuit habeas case made, 857)
stating (at “If, time the turn-over order was p. at the presumption bankrupt’s hands, the papers in the
the books and were his control they in his or under continued to be bankruptcy for satisfactorily to the court of he has accounted
until upon subsequent disposition disappearance. The burden is
their escape He cannot an satisfactorily to so account them.
him denying that he by simply under oath their surrender
order for contempt Frankel, case them.”; In re 184 F. longer has
no Judge, refused to commit Hand, District which L. then a binding as turnover order he did not deem the because holding rehearing himself, judicata, but on reversed res constituting inability by present not show could (at 542) order, stating p. “There indirect attack on the turnover anything, anyone to do fore, in order so far as directs [turnover]
88 usually of what deemed over, unless, place
turn them by process
evidence, infirmity seep, an has been found to respect for which in its osmosis,
of into the turnover order
entirety point problem. of our starting is the impossibility on the inference of time to have acted performance order,
of the turnover or to have taken of as imprisoning
notice of the rule of the Second Circuit presumption of a bank-
to the continued
rupt’s was when we were asked to review goods, withheld Appeals’ affirmance of the denigrating
the Circuit Court of to review that turn-
turnover order.17 When we declined may proceeding question propriety of contempt
he not in the the existing fact, direction; determines
the and in so far as the order an validity direction, necessary he
which is in law to the the question question question to its truth. To such a fact is only
validity depends upon it, the direction which way reviewing deny
indirect the order. Therefore now to bankrupt money
fact that had the in his is in this directing pay
case to assert him to it over er- order was account, therefore, concluded,
roneous. On this that fact is once granted necessary validity order,
it be it was to Quite reluctantly, therefore,
which I have shown. I can con- originally wrong inquire merits, that I
clude was to into the
that a must issue.” The cumulative of these committal effect possession, standing bankrupt’s present
authorities is that a denial
alone, inability produce prop- is not sufficient to establish his
erty proceeds, bankruptcy permit or its and that the court will not bankrupt prove present inability with the turn- indirectly
over order evidence which constitutes a collateral
attack on that order. forty years, tenaciously For almost the Second Circuit has presumption possession.
abided of continued While this
presumption (e. previously g., sub dlentio utilized In re Schles
inger, 117, affirming 930), 102 F. In re F. Stavrahn in 330, appears
F. been the Second Circuit’s case of first im
pression, presumption. and the decision that sired the There the against
court stated that the could not defend following
citation a turnover order on the assertion he had binding adjudication. a final and it became
over misapprehension under below was court
Neither contempt proceeding. law in the instant applicable *28 2d 972. Siegler, In 31 F. on re
The District Court relied correctly on a that was decided surely case
But reliance If the of law. misapprehension
hardly indication of Oriel v. preceded had of followed18
Siegler instead decision re-
Russell, of the authorities it well have been one might do we Nor opinion.19 Taft’s upon
lied in Chief Justice Frank’s conclusion speculate Judge to whether
have as to evidence was based on was unable to Maggio turn- to propriety on doubt as
in this record or before us printed same record
over We have the order. Presum- evidence. he is barren and such had forward with question, assets in but had come
never taken the of the assets explanation as to had become
some reasonable what reiterated order. In Circuit
since the turnover the Second Co.,
reasoning
The been the District opinion, in this case commended
earlier and court carrying
Judge aptly of the Stavrahn decision. out mandate listed and dis up 1925 and before the case are
The cases Oriel Magen 91, in length Co., In F. 2d which the at in re H. 10 cussed pretty relating turn-over orders observed that “The law
court
Siegler,
In re
in this
note Sofranski, 424; F. 2d Then Danish v. 93 the Oriel case. came: in Seligson Goldsmith, Pinsky-Lapin Co., 776; F. 2d v. note In re & 98 Jeskowitz, Gottbetter, supra; v. v. Cohen supra; Robbins note 2
3 per supra; curiam affirmance the turnover order
note 2 proceedings. bankruptcy
in the instant 18 of a “Any respecting and effect opinion the force difference prevailed decision of the order, which before the
turnover v. [companion case to Oriel Supreme Court, Prela Hubshman subject.” place any discussion of ... is now out of
Russell] F.2dat 973. Frankel, supra. In Cf. note re Judge Frank
ably did travel outside record not this private
act on undisclosed knowledge. course The whole
of this issue the Second Circuit makes years recent
it obvious that his observation ani- merely was another practice
madversion on that in issuing Circuit’s
orders. The Circuit Court of Appeals purport did an independent
make Maggio’s evaluation of
bearing incapacity his the turnover It obey order. beyond power to do so. The Circuit Court was not
at large. power Its was limited to consideration of the
justifiability of the District findings Court’s on the basis
of the record before that court. procedural situation, cure if called cure is
for, regard- is correction of the rule of the Second Circuit
ing presumptions in It ought turnover orders.20 not to *29 indirectly
be dealt with beclouding and at the cost judicata
doctrine res in proceedings contempt. for civil
If Maggio has become the unhappy pro- victim of the
cedural snarl into which the Appeals Circuit Court of
for the Second Circuit has involved itself by its decisions appeals
on the of turnover by orders and this Court’s re-
fusal to review such adjudications, law not without
ample remedies. The power District Court has to dis-
charge contemnor when confinement futile, has become through release be had corpus, use of habeas which,
in the now classic language of Mr. Holmes, Justice “cuts all
through goes very forms and to the tissue of the struc- It
ture. comes outside, not subordination proceedings
to the .'. . .” Mangum, Frank v. S.U.
309, 346. These are means available correct whatever
specific hardship may present case this without generating
cloudiness in range upon indeterminate a legal principle
of such social significance judicata as that of res upon Fraidin, Brune v. Cf. 149F. 2d 325.
a remedy so vital civil admin- sturdy as justice.
istration of
How the carry conscientious District Court to out the conveyed by opinion? If Dis-
directions the Court’s gives unquestioned
trict Court respect, as it is told to
do, to August 9, 1943, the turnover order of it will start
with the fact that on August 9, 1943, bank-
rupt able to with that that was order. With
aas starting-point, will the Court not District be entitled again,
to find already found,21 nothing pre- as
sented exculpation complying not disproves the turnover order continued he
have the which he was found to had property, have August 9, If 1943? the District Court should so
find, would not Appeals the Circuit Court of and this
Court, if review, duty the case came here for be that,
bound to hold on the basis of the ad- situation as
judicated by the turnover the District Court reasonably
could make a finding? such Or is the
District Court infer in view of the into which snarl proceedings got by
these upset reason of the failure to directly review,
the turnover order when under Court indulging benign judicial winking while the —that adjudi-
fact of the had been verbally
cated the turnover order could not
questioned, accept District need
determination of that order as facts? But if the District *30 opinion April 18, 1945, holding petitioner In the dated in con court,
tempt “Respondent [peti the District Court stated that: satisfactorily accounting
tioner has not sustained his burden of here] disposition by
for the of the assets his mere denial finding
under And as follows: oath.” that court’s fourth of fact was wholly respondent, Joseph Maggio,
“The F. failed order, explain
with to the satis said turnover and he has failed to comply.”
faction of this his failure to court turnover order of the adjudication may so drain the that Oriel why assert significance, legal an reaffirm Why without scratch?
Bussell is left re-, not be may order a turnover sustaining
adjudication order? sought such when obedience is
litigated merely not confront which will questions
These are After case will be remanded. judge to whom this
district administration practical with the
all, we are concerned all judges over Act district Bankruptcy by
of the States.
United regarding the views abstaining expressing
By nor agree I mean neither to of a turnover
requisites There the Court. by made
disagree observations adjudication of that past in the opportunity
has been opportunity there be
matter, and such it. Erom all of which present
future. This case does affirmed, judgment
I below should conclude the occasion
leaving day, for another when makes explicitly directly prin- to consider
appropriate, of turnover orders govern the issue
ciple should courts.22
bankruptcy long out been so drawn proceedings in these two cases have “The retry presented bankrupts the issue part on the efforts themselves, convincing argu be, of motion to turn over as to on the away in frittered bankruptcy is not to be if the statute ment that orders, rule of lawful delays of enforcement and failures
constant at 363. proper one.” 278 U. S.
we have laid down is the *32 CO