Vern O. Austin v. Wendell-West Company, a Limited Partnership

539 F.2d 71 Vern O. AUSTIN et al., Plaintiffs-Appellees, v. WENDELL-WEST COMPANY, a Limited Partnership, et al., Defendants-Appellants. United States Court of Appeals, Ninth Circuit. July 1, 1976. Rehearing and Rehearing In Banc Denied, Aug. 8, 1976. Howard R. Bartlett (argued), of Monheimer, Schermer, VanFredenberg & Smith, Seattle, Wash., for defendants-appellants. Dillon E. Jackson (argued), of Powell, Livengood, Silvernale, Carter & Tjossem, Kirkland, Wash., for plaintiffs-appellees. OPINION Before DUNIWAY, ELY and TRASK, Circuit Judges. At the conclusion of oral argument in this case on June 23, 1976, and after a conference, the following oral opinion was delivered from the bench: DUNIWAY, Circuit Judge: 1 The court's oral decision will be typed from the tape (recording) and perhaps slightly edited, depending upon how bad the speaking is, and will become a published authoritative decision of the court on the issues presented in this case. 2 In the case, it is the judgment of the court that the judgment appealed from is affirmed. This is substantially for the reasons stated by Bankruptcy Judge Freeman in his findings of fact and conclusions of law and decision which…

At the conclusion of oral argument in this case on June 23, 1976, and after a conference, the following oral opinion was delivered from the bench:

The court’s oral decision will be typed from the tape [recording] and perhaps slightly edited, depending upon how bad the speaking is, and will become a published authoritative decision of the court on the issues presented in this case.

In the case, it is the judgment of the court that the judgment appealed from is affirmed. This is substantially for the reasons stated by Bankruptcy Judge Freeman in his findings of fact and conclusions of law and decision which appear on pages 415 through 419 of the record in this case [Appendix A to this opinion], and the reasons stated by District Judge Voorhees in his order affirming the decision of the bankruptcy judge, appearing at pages 619 and 620 of the record [Appendix B to this opinion]. Our decision also rests on the authority of the following cases: In re Mountjoy, W.D.Mo., 1973, 368 F.Supp. 1087 ; In re Lebow, S.D.N.Y., 1975, 397 F.Supp. 487 , Bankruptcy Law Reporter, Aug. 21, 1975, and the case of In re Wood, which was handed down in the United States District Court for the…

(dissenting):

I regret to announce that I must disagree with the views of my distinguished brothers on the bench. It is my view that under the constitution of the United States the Congress has the power to create, to limit, or enlarge the jurisdiction of the inferior courts, including the Bankruptcy Court, and, that they did in this case. I find that the language of Sections 17(c)(2) and 17(c)(3) of the 1970 Amendments to the Bankruptcy Act are mandatory in nature, and I can find no way to avoid the mandatory requirements of those statutes. In my view there are sound reasons of policy that would have prompted the Congress to adopt them. The view that I take in interpreting the statutes is that Congress could well have decided that it is good policy to permit the determination in one forum of the question of liability and of dischargeability in situations described in Sections 17(a)(2), (4), and (8) of the statute.

I further find that the appellees’ reliance upon Section 17(c)(4) as an escape from the mandatory language of Sections 17(c)(2) and 17(c)(3) is not persuasive and, therefore, I would reverse.