Herman Keck Mfg. Co. v. Lorsch

Sixth Circuit

Herman Keck Mfg. Co. v. Lorsch

179 F. 485, 16 Ohio F. Dec. 432, 1910 U.S. App. LEXIS 4668

CourtCourt of Appeals for the Sixth Circuit

DecidedMarch 10, 1910

DocketNo. 2,044

StatusPublished

Cited by1 cases

This text of 179 F. 485 (Herman Keck Mfg. Co. v. Lorsch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herman Keck Mfg. Co. v. Lorsch, 179 F. 485, 16 Ohio F. Dec. 432, 1910 U.S. App. LEXIS 4668 (6th Cir. 1910).

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Opinion

PER CURIAM.

Three distinct motions were submitted yesterday relating to this matter.

The first motion is founded upon a suggestion that only a part of the record was brought here, and that the transcript does not include several things and matters which it is claimed are necessary in order to a satisfactory examination of the questions raised. That motion we are disposed to allow, with the reservation of power in this court to ultimately determine where the costs of that additional matter of the transcript should be placed, determinable upon the question whether or not it is necessary to be brought, in order to have a proper understanding. With this reservation, the motion will be granted; but for [487]*487special reasons, which we do not care to dwell upon, we further order that the charges incident to the supplying of this additional matter be paid by the appellees, and so of the cost of printing it, the ultimate liability for which is also to be determined hereafter.

Another motion was for an order requiring that the original books and records kept in the business of the Keck Manufacturing Company should be ordered to be sent here; it being claimed that there is something about the books which could not be adequately transcribed. This motion is denied. There is a rule, which we have taken from the Supreme Court rules, so far as this branch of it is concerned, that where there are exhibits in the record in the court below, such as cannot be transcribed or brought here by proper representation, as, for instance, models and the like, which have been made part of the evidence in that court, they may be ordered by the judge of the court below to be sent here as part of the return to the appeal. The rule applies generally to such matters as cannot be transcribed, so as to be exhibited to this court as they were exhibited to the court below. The application for an order to send up the original books and records is not within the scope of that provision. It is not shown that transcription, or representation by photographic copies, if necessary, cannot be made. Therefore no ground is made which would bring the case within the scope of the rule.

The other motion is that the receiver, who was appointed in the court below while this matter was pending there, has in his possession, according to the showing made, funds arising from the conversion of the estate. It is asked that an order be made upon him to advance and pay the costs of the transcript and the printing of the record, and the suggested diminution from funds in his hands, because the appellant is without the means necessary for defraying the expense of copying the transcript and printing the record. We think this motion cannot be "granted. The fund, which is in the hands of the court, is subject to the disposition and control of the court by its decree. ít is true that circumstances are such as to excite regret, for the disability of the Keck Company; but there is no precedent for making such an order as this in such circumstances merely on the ground of the poverty or inability of the appellant to get the case heard. Along the same line is the practice in cases where the appellant seeks to prosecute an appeal in forma pauperis. It had been the practice in this court until recently to allow the appellant to prosecute an appeal in forma pauperis ; but that practice was dropped upon the authority of a decision of the Supreme Court. The Supreme Court held that the provision in regard to allowing an appeal to be prosecuted in forma pauperis applies only to the court of first instance, and does not apply to the appellate court. With due respect to the Supreme Court, whose rule is the same as ours, we have changed the rule, so that now this court does not permit an appeal in forma pauperis. In re Bradford’s Petition 71 C. C. A. 334, 139 Fed. 518. That being so, much less ought we to allow a proceeding to be financed by means to be supplied out of this fund, which it may ultimately be held, by the decree eventually to be made, ought to go to the benefit of creditors. These are, simply stated, the grounds upon which we deny this motion.

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PER CURIAM.

Three distinct motions were submitted yesterday relating to this matter.

The first motion is founded upon a suggestion that only a part of the record was brought here, and that the transcript does not include several things and matters which it is claimed are necessary in order to a satisfactory examination of the questions raised. That motion we are disposed to allow, with the reservation of power in this court to ultimately determine where the costs of that additional matter of the transcript should be placed, determinable upon the question whether or not it is necessary to be brought, in order to have a proper understanding. With this reservation, the motion will be granted; but for [487]*487special reasons, which we do not care to dwell upon, we further order that the charges incident to the supplying of this additional matter be paid by the appellees, and so of the cost of printing it, the ultimate liability for which is also to be determined hereafter.

Another motion was for an order requiring that the original books and records kept in the business of the Keck Manufacturing Company should be ordered to be sent here; it being claimed that there is something about the books which could not be adequately transcribed. This motion is denied. There is a rule, which we have taken from the Supreme Court rules, so far as this branch of it is concerned, that where there are exhibits in the record in the court below, such as cannot be transcribed or brought here by proper representation, as, for instance, models and the like, which have been made part of the evidence in that court, they may be ordered by the judge of the court below to be sent here as part of the return to the appeal. The rule applies generally to such matters as cannot be transcribed, so as to be exhibited to this court as they were exhibited to the court below. The application for an order to send up the original books and records is not within the scope of that provision. It is not shown that transcription, or representation by photographic copies, if necessary, cannot be made. Therefore no ground is made which would bring the case within the scope of the rule.

The other motion is that the receiver, who was appointed in the court below while this matter was pending there, has in his possession, according to the showing made, funds arising from the conversion of the estate. It is asked that an order be made upon him to advance and pay the costs of the transcript and the printing of the record, and the suggested diminution from funds in his hands, because the appellant is without the means necessary for defraying the expense of copying the transcript and printing the record. We think this motion cannot be "granted. The fund, which is in the hands of the court, is subject to the disposition and control of the court by its decree. ít is true that circumstances are such as to excite regret, for the disability of the Keck Company; but there is no precedent for making such an order as this in such circumstances merely on the ground of the poverty or inability of the appellant to get the case heard. Along the same line is the practice in cases where the appellant seeks to prosecute an appeal in forma pauperis. It had been the practice in this court until recently to allow the appellant to prosecute an appeal in forma pauperis ; but that practice was dropped upon the authority of a decision of the Supreme Court. The Supreme Court held that the provision in regard to allowing an appeal to be prosecuted in forma pauperis applies only to the court of first instance, and does not apply to the appellate court. With due respect to the Supreme Court, whose rule is the same as ours, we have changed the rule, so that now this court does not permit an appeal in forma pauperis. In re Bradford’s Petition 71 C. C. A. 334, 139 Fed. 518. That being so, much less ought we to allow a proceeding to be financed by means to be supplied out of this fund, which it may ultimately be held, by the decree eventually to be made, ought to go to the benefit of creditors. These are, simply stated, the grounds upon which we deny this motion.

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179 F. 485, 16 Ohio F. Dec. 432, 1910 U.S. App. LEXIS 4668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-keck-mfg-co-v-lorsch-ca6-1910.

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