Consani v. Brandon

154 F. 478, 1907 U.S. App. LEXIS 4554

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 1907
• Docket: No. 1,410
• Status: Published

Opinion

GILBERT, Circuit Judge

(after stating the facts). Section 24b of the bankruptcy act of July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3132], gives the Circuit Courts of Appeals authority to superintend and revise in matters of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. It was intended thereby to provide a summary method for revising the orders and decisions of courts of bankruptcy upon questions of law, and the section does not contemplate any review of facts. In re House, Hazard & Co., 91 Fed. 96, 33 C. C. A. 356; In re Purvine, 96 Fed. 192, 37 C. C. A. 446; In re Whitener, 105 Fed. 180, 44 C. C. A. 434. The only question, therefore, presented for our consideration on this petition is whether the proper remedy of the trustee to recover the money which was obtained by the petitioner was a plenary suit in court or a summary proceeding such as he adopted. If the property had been in the adverse possession of the petitioner before the bankrupts filed their petition to be adjudicated bankrupts there can be no doubt that a plenary suit would have been necessary. But assuming, as we may under the record, the facts to have been, as it is claimed by the respondent herein that they were, that certain property of the bankrupts was taken upon a void attachment and that the money realized on the sale thereof was paid to the petitioner on a judgment entered in his favor by default against the bankrupts several weeks after they had filed their petition in the District Court to be adjudicated bankrupts, and that this was known to the petitioner, we think there can be no question that under the provisions of section 2 (7) and section 67f of the bankruptcy act, authorizing the referee to compel the surrender of funds to the trustee, the proceeding had before the referee in this case was permissible. Bryan v. Bernheimer, 181 U. S. 185, 21 Sup. Ct. 557, 45 L. Ed. 814; Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405; In re Breslauer (D. C.) 121 Fed. 910; In re Goldberg (D. C.) 121 Fed. 578. And, if the referee could lawfully make the order, it follows that the court below could deal with the petitioner as for contempt, and commit him to imprisonment for refusal to obey the order. Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405; Ripon Knitting Works v. Schreiber (D. C.) 101 Fed. 810.

There is nothing in the petition or in the record which is before us to show that the referee acted without jurisdiction, or that there was error in the order of the District Court.

The application for revision is denied, and the petition is dismissed.