In re Soloway & Katz

195 F. 103, 1912 U.S. Dist. LEXIS 1623

Opinion

PLATT, District Judge.

Let me state my views concerning this petition for review of the referee’s order as briefly as possible, taking up the assignments of error in their order.

.[1] First. The referee had ample and complete jurisdiction to pass the order complained of. He was clothed with all the functions of the judge, except the power to punish for contempt. The bankrupts were being lawfully examined at a meeting of creditors provided for by statute. It was evident that the missing books were needed for the proper administration of the estate in the interest of the creditors.

[2] Second. The importance of the niissing books was a self-evident proposition, and it was not necessary to specify it in the order.

[3] ■ Third. A subpoena duces tecum was neither necessary or proper.’ There was no occasion for it. There would have been no sense in issuing one. If the trustee had been demanding something, the situation would have been.entirely different.

[4] Fourth and Fifth. It is not my duty to pass upon the evidence, which the referee reports as satisfying him. He says he was satis-■fled, and that is enough for me. If proceedings in contempt shall follow, then the evidence which I shall call for will.be the important and controlling thing.

[5] Sixth and Seventh. There were no issues before the court and no occasion for any. The order was issued in the course of examination and was entirely within the discretion of the referee.

Eighth. The order is not contrary to the court’s opinion of January 27th. The situation then was entirely different from the situation now. The purpose of that opinion was to show the irregularity of the action then taken, which was based upon a petition filed by the trustee .asking for the production of the missing books. Assuming that the ■same path might; be again traveled, an effort was made to mark the boundaries of that path and that path only. No expression of opinion, as to a situation like the present one, can be extracted, unless it be a favorable one.

This langüage appears in that opinion:

“TMs petition and the order of the referee based thereon were not mere incidents of the bankrupts’ examination. The language of the order makes it -clear that a very different object was sought to be obtained.”

An ordinarily vigorous intellect ought to infer from those words that, if the proceedings had been “incidents of the bankrupts’ examination,” a different conclusion might have been reached.

[6] Ninth. The information upon which the referee acted was not gained in an irregular way. When exercising his discretion in re.-spect to the issuance of the order, he had a right to avail himself of all information which had been furnished him, by testimony presented at th.e creditors’ meeting, over which he was presiding.

Tenth. The referee reports that he is satisfied that it is not “physi-: cally impossible” for one or the other or both of the bankrupts to pro-: duce the missing books. ’ As I have" said in respect to the fourth assignment of error, it is not my duty to pass, at this time, upon the weight of the evidence which he says satisfies him.

Eleventh. The court, in-its opinioñ of January 27th, did not restrict the referee to one particular mode of procedure. If the court had undertaken to-do so, its action would have been erroneous. The court assumed, as has been said above, that a certain course would probably be followed and tried to make plain what ought to be done if that course were followed.

There is no error. The order of the referee was a lawful one and is affirmed.