Withers Bros. v. Foley

RUDKIN, Circuit Judge. This is an appeal from an order granting a discharge in bankruptcy. The principal objections to the discharge were that an item of $7,699.29, represented by claim cheeks against the Western Pacific Railroad Company, a cash item of $200 in bank, and a share of stock or certificate of membership in a gun club, of the value of $1,500, were omitted from ^he schedules; that the claim checks were cashed by the bankrupt a few days after the filing of the involuntary petition, and that the share or certificate of membership in the gun club was transferred by the bankrupt to his son. The petition for a discharge and the objections thereto were referred to the referee in bankruptcy, for the purpose of hearing the objections and reporting his findings to the court. The referee found that the bankrupt did not knowingly and fraudulently make a false oath or render a false account in relation to his proceedings in bankruptcy; that he did not knowingly or fraudulently conceal any of his assets from the trustee; that, although the bankrupt cashed cheeks in the amount of $7,699.29, which were in his possession at the time of filing the involuntary petition, and had in his office a certificate of memberr ship in the Twenty-Bight Gun Club and approximately $200 in a cheeking account in the French-American Bank of San Francisco, nevertheless there was no testimony and no act on the part of the bankrupt which led the referee to believe that the bankrupt had any intention of concealing assets from the trustee; and that all of the above property was surrendered to the trustee as soon as the bankrupt was notified by the trustee that the property rightfully belonged to the bankrupt’s estate. These findings were approved by the trial judge. The rule is universally' recognized that, where the testimony is conflicting and the findings of the referee are approved by the District Judge, the facts will not be inquired into by an appellate court, except for plain and manifest error. In re Dorr, 196 F. 292, 116 C. C. A. 112. This rale applies to applications for a discharge, as well as to all other matters in bankruptcy. Arenz v. Astoria Sav. Bank (C. C. A.) 281 F. 530; In re Empie (C. C. A.) 296 F. 672; Baker v. Bishop-Babcock-Becker Co., 220 F. 657, 136 C. C. A. 265. In the latter ease the court said: “Just what weight should be given to the finding of a referee or special master upon an application for a discharge, has been the subject of some difference of opinion among the courts; but we think it may fairly be stated that the consensus is that where a referee and special master’s .action is based upon conflicting testimony, and he heard and saw the witnesses, that his findings ought to be accepted, and not disturbed, unless it appears that he has made a plain mistake; and this is particularly true in cases involving the concealment of assets, where the motive and intent of the bankrupt becomes material. In this class of cases much weight is necessarily due to the conclusions of the tribunal which had the opportunity of seeing and observing the manner and deportment of the witnesses whose acts were called in question, or of those who may have been cognizant of the transaction.” Measured by this rale, whatever our individual opinions might be if the question were an open one, we are satisfied that the findings of the referee, concurred in by the trial judge, should not be disturbed. The order is therefore affirmed.