In re Purvine

Fifth Circuit

In re Purvine

96 F. 192, 37 C.C.A. 446, 1899 U.S. App. LEXIS 2513

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 28, 1899

DocketNo. 850

StatusPublished

Cited by25 cases

This text of 96 F. 192 (In re Purvine) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Purvine, 96 F. 192, 37 C.C.A. 446, 1899 U.S. App. LEXIS 2513 (5th Cir. 1899).

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Opinions

NEWMAN, District Judge

(after stating the facts as above). The question in the case before us is, had the district court power to pass the order excepted to, and brought before the court of appeals in vacation, in chambers, for revision?

This court only revises the action of the district court in matters of law. Bankruptcy Act 1898, §§ 24, 24b.

[194]*194The -facts are for the district court. The judge presiding in that court found that Purvine had the money in his possession and control,, and there was ample evidence to support such finding; so the sole question here is one of the power of the district court to order a bankrupt having money in his possession, belonging to the bankrupt estate, to turn the same over to the trustee, and to punish as for contempt the failure to do so.

We are satisfied that the district court has such power. It is the duty of the bankrupt to deliver to the trustee all property subject to his debts. Upon his failure to make such delivery he may be ordered by the court to do so. Unquestionably, the court has this power. Having it, it is strange, indeed, if, when exercising it, it cannot enforce its orders. To deny this authority is to admit that a bankrupt may sit in the very presence of the court with ca.sh to any amount in his pocket, which is a part of his estate, and the title and right to the possession of which is legally in the trustee, and smile at the order of the court directing him to turn it over to the trustee. To deny this authority makes this anomaly: that it is the duty of the court to make an order which it is powerless to enforce. By section 41, Bankruptcy Act 1898, it is provided:

“A person shall not in proceedings before a referee, (1) disobey or resist any lawful order, process, or writ. ■ * * * b. The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and if it is such to warrant him in so doing, punish such persons in the same manner and to the same extent as for contempt committed before a court of bankruptcy; or commit such person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of the court”

If the court of bankruptcy is powerless in this respect, persons, by becoming bankrupts, obtain an immunity not allowable in any other court of equal dignity, either federal or state, in this country. Orders similar to that made by the district judge in this case were made under the bankrupt act of 1867, and enforced in the same way. In re Dresser, 3 N. B. R. 557, Fed. Cas. No. 4,077; In re Salkey, 11 N. B. R. 423, Fed. Cas. No. 12,253; In re Peltasohn, Fed. Cas. No. 10,912; In re Kempner, Id. 7,689, 6 N. B. R. 521; In re Speyer, Fed. Cas. No. 13,239, 6 N. B. R. 255.

While we are clear, therefore, as to the existence of the authority to punish for contempt in cases like this, we think it proper to say that in the bankrupt court, as in all other courts, the power to punish for contempt should be carefully exercised. By the bankrupt law, various acts of the bankrupt are made criminal offenses, and various rights vesting in the trustee are to be enforced by proper civil proceedings in courts of competent jurisdiction. We simply pass on the question before us, and hold that, when a bankrupt has in his possession and control cash belonging to the bankrupt estate, the court may, within the meaning of the bankrupt act, make a “lawful order” directing him to turn the same over to the trustee, and on his failure to do so may commit him until he complies with the order.

We decline to interfere with the order of the district court, and consequently it is ordered that the application for a revision of the [195]*195.action of the district judge in this case he, and the same is hereby, denied.

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NEWMAN, District Judge

(after stating the facts as above). The question in the case before us is, had the district court power to pass the order excepted to, and brought before the court of appeals in vacation, in chambers, for revision?

This court only revises the action of the district court in matters of law. Bankruptcy Act 1898, §§ 24, 24b.

[194]*194The -facts are for the district court. The judge presiding in that court found that Purvine had the money in his possession and control,, and there was ample evidence to support such finding; so the sole question here is one of the power of the district court to order a bankrupt having money in his possession, belonging to the bankrupt estate, to turn the same over to the trustee, and to punish as for contempt the failure to do so.

We are satisfied that the district court has such power. It is the duty of the bankrupt to deliver to the trustee all property subject to his debts. Upon his failure to make such delivery he may be ordered by the court to do so. Unquestionably, the court has this power. Having it, it is strange, indeed, if, when exercising it, it cannot enforce its orders. To deny this authority is to admit that a bankrupt may sit in the very presence of the court with ca.sh to any amount in his pocket, which is a part of his estate, and the title and right to the possession of which is legally in the trustee, and smile at the order of the court directing him to turn it over to the trustee. To deny this authority makes this anomaly: that it is the duty of the court to make an order which it is powerless to enforce. By section 41, Bankruptcy Act 1898, it is provided:

“A person shall not in proceedings before a referee, (1) disobey or resist any lawful order, process, or writ. ■ * * * b. The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and if it is such to warrant him in so doing, punish such persons in the same manner and to the same extent as for contempt committed before a court of bankruptcy; or commit such person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of the court”

If the court of bankruptcy is powerless in this respect, persons, by becoming bankrupts, obtain an immunity not allowable in any other court of equal dignity, either federal or state, in this country. Orders similar to that made by the district judge in this case were made under the bankrupt act of 1867, and enforced in the same way. In re Dresser, 3 N. B. R. 557, Fed. Cas. No. 4,077; In re Salkey, 11 N. B. R. 423, Fed. Cas. No. 12,253; In re Peltasohn, Fed. Cas. No. 10,912; In re Kempner, Id. 7,689, 6 N. B. R. 521; In re Speyer, Fed. Cas. No. 13,239, 6 N. B. R. 255.

While we are clear, therefore, as to the existence of the authority to punish for contempt in cases like this, we think it proper to say that in the bankrupt court, as in all other courts, the power to punish for contempt should be carefully exercised. By the bankrupt law, various acts of the bankrupt are made criminal offenses, and various rights vesting in the trustee are to be enforced by proper civil proceedings in courts of competent jurisdiction. We simply pass on the question before us, and hold that, when a bankrupt has in his possession and control cash belonging to the bankrupt estate, the court may, within the meaning of the bankrupt act, make a “lawful order” directing him to turn the same over to the trustee, and on his failure to do so may commit him until he complies with the order.

We decline to interfere with the order of the district court, and consequently it is ordered that the application for a revision of the [195]*195.action of the district judge in this case he, and the same is hereby, denied.

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Bluebook (online)

96 F. 192, 37 C.C.A. 446, 1899 U.S. App. LEXIS 2513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-purvine-ca5-1899.

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