R. H. Berg v. Charles E. Hoppe, Assignee of Pacific Telephone and Telegraph Co.

352 F.2d 776 R. H. BERG et al., Appellants, v. Charles E. HOPPE, Assignee of Pacific Telephone and Telegraph Co., et al., Appellees. No. 19317. United States Court of Appeals Ninth Circuit. November 3, 1965. David Freidenrich, Adams, Freidenrich & Ware, Palo Alto, Cal., Thorne, Stanton, Clopton, Herz & Stanek, San Jose, Cal., for appellants. Henry Cohen, San Francisco, Cal., John J. Hayes, Jr., Robert J. Mezzetti, San Jose, Cal., Shapro, Anixter & Aronson, Burlingame, Cal., for appellees. Before BARNES, BROWNING and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge. 1 This appeal is taken from a district court order entitled "Order Regarding Order to Show Cause and Certification of Respondents to this Court for Contempt." This order issued as a result of appellants' refusal to comply with a directive to file schedules and statements of affairs in advance of the trial of an involuntary Bankruptcy petition brought against appellants by certain of the present appellees. The jurisdiction of the district court was based upon 11 U.S.C. § 11 . We have the authority to review that court's order pursuant to 11 U.S.C. § 47 , sub. a. 2 On April 22, 1963, three petitioning…

(dissenting).

I respectfully disagree and dissent.

Appellants insist that the Bankruptcy Act expressly directs that the appropriate schedules of the alleged bankrupt only be submitted after it is determined that the respondent is in fact a bankrupt within the meaning of the Act. Appellants cite as authority for this proposition the provisions of 11 U.S.C. § 25 (a)(8) and (9).

Section 25(a)(8) reads in pertinent part as follows:

Paragraph (9) of section 25, sub. a reads in pertinent part as follows:

Appellants note, with regard to paragraph 9, that a first meeting of creditors cannot be held less than ten days after adjudication.

On the basis of these two statutory provisions, appellants assert that the referee improperly ordered them to submit appropriate schedules prior to adjudication. Appellants contend that until they are adjudged bankrupt no invasion of the privacy of their business affairs is warranted.

I cannot agree with appellants’ construction of the Act, based as it is upon extractions from the Act of certain provisions to the exclusion of others which are of direct relevance. In particular, appellants disregard the express language of 11 U.S.C. § 21 (d), which…

This appeal is taken from a district court order entitled “Order Regarding Order to Show Cause and Certification of Respondents to this Court for Contempt.” This order issued as a result of appellants’ refusal to comply with a directive to file schedules and statements of affairs in advance of the trial of an involuntary Bankruptcy petition brought against appellants by certain of the present appellees. The jurisdiction of the district court was based upon 11 U.S.C. § 11 . We have the authority to review that court’s order pursuant to 11 U.S.C. § 47 , sub. a.

On April 22, 1963, three petitioning creditors filed an involuntary petition in bankruptcy against the appellants. Before adjudication the creditors filed a notice of motion to require the appellants to file their schedules of assets and liabilities and statements of affairs. The referee ordered the appellants to file their schedules of assets and liabilities and their statements of affairs within ten days. They failed to do so.

The referee ordered the alleged bankrupts to appear before the court below to show cause why they should not be adjudged guilty of contempt. Following a hearing, the court below made an order…