In re Lopez

12 P.R. Fed. 527

Opinion

Odian, Judge,

delivered the following opinion':'

On November 14th, 1922, I signed an order, on motion of the trustee of the bankrupt estate, for a rule to issue directing Perfecto Paradis and Eidel R. Rodriguez to appear before me on a day named in said order and show cause why an attachment for contempt should not issue against them for failing to comply with, a certain order of Mr. Rafael Martinez Alvarez, referee in bankruptcy, dated July 15th, 1922.

The said Pidel R. Rodriguez at the time of this order of the referee in bankruptcy was acting as the marshal of the municipal court of the city of Oaguas, and so far as I know, he is still serving in that capacity. The said Perfecto Paradis was the plaintiff in á certain suit pending before the municipal court of Oaguas, in which suit Pedro Peña Lopez, bankrupt, was one of the defendants.

Paradis had obtained a judgment against the said Pedro Peña Lopez et al., and following said judgment there was an .executive sale which resulted in a certain deed being executed on October Utb, 1922, in favor of the said Perfecto Paradis, who took possession of the property described in said deed and made a lease of the same to one Guillo and was receiving a rental therefor. These proceedings were alleged to have been in violation of an order signed by the said referee in bankruptcy on July 15th, 1922. Thereafter motions' were presented to this court on behalf of the said Pidel R. Rodriguez and Perfecto Paradis for a discharge of the rule to show cause because said rule issued without a certificate of the referee in bankruptcy having been filed, as required by § 41b of the Bankruptcy Act; and with respect to Pidel R. Rodriguez, the additional grounds are submitted that the order of the referee is not directed to Rodriguez in his capacity as marshal of the municipal court of Oaguas, and even though it wore, the point is made by the attorney general that the referee has no jurisdiction to issue an injunction to restrain proceedings of an officer of an insular court, and the further ground is the same relied upon by counsel for Paradis, namely, that these con tempt proceedings are not based upon a proper certificate of tlie referee, as required by the provision of the Bankruptcy Act above mentioned.

Tfiis court is of the opinion that the proceedings are fatally defective and that they should be dismissed, and it is so. ordered; but without prejudice to the right of the trustee in ■bankruptcy to apply to the referee for a proper order or certificate, if he shall see fit to do so.

Done and Ordered, San Juan, Porto Rico, December 21st, 1922.