In re J. H. Small Shoe Co.

HAND, Circuit Judge (after stating the facts as'above). Assuming, though not deciding, that we may not look to the opinion as a summary of the evidence taken before the District Court, we have nothing before us except the petition, the answer, and the order. [206] The sole question is whether, on these, some error of law appears. We think that there does. The answer alleges in prassenti that the respondent does, “to the extent of his means, offer an adjustment of the trustee’s claim,-but the trustee has refused to accept said offer.” The record being bare of anything but the pleadings, we are to decide whether the sum so admitted to be within the respondent’s control was part of the fund with which he was charged in the order, or whether it was subsequently acquired. We think that, as the suinmary order, when entered, established prima facie the possession of the fund, any sum tendered in settlement must, until the contrary be shown, be also deemed part of that fund. .To so much the trustee was in any case entitled, whether she refused the settlement or not. In the-absence of any explanation, the order should at least have directed the payment of that amount. In any event, the answer contradicts the finding of the order here on appeal that the respondent was without ability to comply pro tanto. It may be, if the evidence was before us, that this difficulty would be resolved; but it is not. If we are not to look at the opinion, which would show error, if we did, the trustee is entitled to hold the respondent strictly to the pleadings. As the case must go back, we think it proper to correct certain apparent misunderstandings on the part of the District Court. We held in Re Stavrahn, 174 F. 330, 98 C. C. A. 202, 20 Ann. Cas. 888, that upon contempt proceedings the summary order to surrender or pay made out a prima facie case. In Re Weber, 200 F. 404, 118 C. C. A. 556, we not only repeated this,- but went further. We said that the respondent did not answer the prima facie case so made out by a bare denial that he could then comply with the order. At best, he has only two courses open to him: First, he may accept the order as correct when made, in which case he must show that he has,, since its entry, disposed of the money then found to be in his hands or within his control. Whether the trustee still has the burden of proof we need not now say, but the duty of going forward is upon the respondent, and he can fulfill it only by accounting circumstantially for his disposition of the property. His other possible course depends upon the assumption that the measure of proof in contempt proceedings is criminal; i. e., beyond a reasonable, doubt, a question on which we do not now pass. If so, he may argue that he was not shown beyond a reasonable .doubt to have had possession of the property when the summary order was entered. This he cannot do without putting in evidence in the contempt proceedings the record in the summary proceedings, together with any other evidence not merely cumulative. If the criminal rule applies, the trustee would then have to satisfy the court beyond a reasonable doubt that the respondent had possession of the property at the time when the summary order was entered. In no event will it serve for the respondent to rest upon his oath that at the moment he is without means. Were it so, the whole summary proceedings would be the solemn fatuity, which they have been in this case up to the present time. We disapprove' of the practice here adopted of keeping no record of the evidence taken upon such a hearing, and the District Court is requested in all cases to preserve and return the substance of the testimony and exhibits. Finally, we cannot avoid noticing the fact that, in a ease where dispatch was especially important, and where the respondent had already successfully evaded justice for 2 years, over 10 months was allowed to elapse between the hearing and the determination. Order reversed, and cause remanded for further proceedings in accordance with the foregoing opinion.