Form No. 182

ORDER FOR REPAYMENT BY ATTORNEY

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 122.)

United States District Court,

proceeding, having filed a petition herein, praying under section 60 (d) that an attorney of this court, be directed to turn over to the said trustee the sum of $..... proceeds of certain property alleged to belong to the said bankrupt estate and wrongfully retained for alleged services by the said

.......

and the matter having regularly come on for hearing and re-examination and the referee having on the .....

day of

19..., handed down a decision and findings of fact, Now, upon reading and filing the petition of trustee, verified the

answer of .....

....

.. day of ... verified the

19..., the

.. day of

19..., the testimony, exhibits and all proceedings had herein, and

Now, upon motion of the said attorney for the trustee, it is Ordered, that the prayer of the trustee's petition herein be and

hereby is granted.

And it is further ordered, that the said .....

within ........ days to

herein, the sum of $..

pay over

as trustee in bankruptcy

Cross-references.- See §§ 60 and 62, Vol. II, ante.

Jurisdiction. An administrative proceeding.

In re Wood and Henderson (U. S. Sup.), 20 Am. B. R. 1, 210 U. S. 246, 52 L. Ed. 1046. In re Lewin, 4 Am. B. R. 632, 103 Fed. 850.

Haffenberg v. Chicago Title & Trust Co. (C. C. A., 7th Cir.), 27 Am. B. R. 708, 192 Fed. 874, 113 C. C. A. 198.

Tripp v. Mitschrich (C. C. A., 8th Cir.), 31 Am. B. R. 662, 211 Fed. 424, 128 C. C. A. 96.

State court has no jurisdiction.

In re Wood and Henderson (supra).

Attorney not an adverse claimant.

In re Ellis Bros. Printing Co. (D. C., N. Y.), 19 Am. B. R. 472, 156 Fed. 430. Summary order to restore property denied.

In re Gilroy & Bloomfield, 14 Am. B. R. 627, 140 Fed. 733.

Services are those to be rendered in contemplation of the filing of a petition "by or against" the bankrupt. Furth v. Stahl, 10 Am. B. R. 442, 205 Pa. St. 439; Pratt v. Bothe (C. C. A., 6th Cir.), 12 Am. B. R. 529, 130 Fed. 670. 65 C. C. A. 48.

In re Kross (D. C., N. Y.), 3 Am. B. R. 187, 96 Fed. 816. In re Habegger (C. C. A., 8th Cir.), 15 Am. B. R. 198, 139 Fed. 623, 71 C. C. A. 607.

In re Stolp, 29 Am. B. R. 32, 199 Fed. 488.
Practice.-

By petition of trustee.

In re Shiebler & Co. (D. C., N. Y.), 20 Am. B. R. 777, 163 Fed. 545.

In re Wood and Henderson (supra).

When petition for restitution may be made by creditor.

In re Oakley, 31 Am. B. R. 806, 215 Fed. 265.

Notice.

In re Lewin (D. C., Vt.), 4 Am. B. R. 632, 103 Fed. 850.

When attorney ordered to turn over property.

In re Eurich's Fort Hamilton Brewery (D. C., N. Y.), 19 Am. B. R. 798, 158 Fed. 644.

When transfer of property by bankrupt in payment of attorney's fees and disbursements may be upheld.

In re Cummins (D. C., N. Y.), 28 Am. B. R. 385, 196 Fed. 224.

Form No. 183

EXCEPTIONS TO REFEREE'S ORDER

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 123.)

United States District Court,

above named bankrupt and files the following exceptions to the

decision and order made on the

by

.. day of

Esq., referee in charge of this proceeding: First. That the said referee was without jurisdiction to make said. order in the premises.

Second. That said order was contrary to the evidence as shown by the record herein and contrary to law.

Third. (Set forth specifically each exception relied upon.)

(Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 124.)

To ...

Esq., Referee in Bankruptcy.

Your petitioner respectfully shows:

day of

bankrupt, and that his claim has been allowed herein. That in the course of the proceedings on the

19..., an order, a copy of which is hereto annexed,

was made and entered herein.

That such order was and is erroneous in that 99

98. Or "the trustee " or otherwise, as the facts may be. See General Order XXVII.

99. Here give the equivalent of an assignment of error in an appeal in equity, or a concise statement of the error relied on.

Wherefore, your petitioner, feeling aggrieved because of such order, prays that the same may be reviewed, as provided in the Bankruptcy Act of 1898 and General Order XXVII.

Cross-references.- See, generally, §§ 38 and 39, ante. Consult also General Order XXVII. Note §§ 2(10) and 38-a. Compare also Form No. 171 and the foot-notes thereto.

Referee's findings of fact upon conflicting testimony should be upheld unless clearly wrong. [See § 39, Vol. I, ante.]

In re Shriver, 10 Am. B. R. 746, 125 Fed. 511.

In re Carver & Co., 7 Am. B. R. 539, 113 Fed. 138.

In re Linton, 7 Am. B. R. 676.

Love v. Export Storage Co.

1, 74 C. C. A. 155.

(C. C. A., 6th Cir.), 16 Am. B. R. 172, 143 Fed.

Houck v. Cristy (C. C. A., 8th Cir.), 18 Am. B. R. 330, 152 Fed. 612, 81 C. C. A. 602.

In re Kenyon, 19 Am. B. R. 194, 156 Fed. 863.

Southern Pine Co. v. Savannah Trust Co. (C. C. A., 5th Cir.), 15 Am. B. R. 618, 141 Fed. 802, 73 C. C. A. 60.

Boyd v. Arnold, Loucheim & Co. (C. C. A., 5th Cir.), 17 Am. B. R. 839, 149 Fed. 187, 79 C. C. A. 135.

In re Simon & Sternberg, 18 Am. B. R. 204, 151 Fed. 507.

Findings based on undisputed facts set out in record entitled to no presumption in their favor.

In re Big Cahaba Coal Co. (D. C., Ala.), 26 Am. B. R. 910, 190 Fed. 900. In the absence of statute or rule of court a petition to review an order of a referee does not of itself operate as a supersedeas.

In re Home Discount Co., 17 Am. B. R. 168, 147 Fed. 538.

Does not contemplate a trial de novo.

In re Home Discount Co. (supra).

Effect of special district rule.

In re T. M. Lesher & Son, 25 Am. B. R. 218, 176 Fed. 650.

Compare In re Greek Mfg. Co. (D. C., Pa.), 21 Am. B. R. 111, 164 Fed. 211. Right of referee to review his own order.

No power after expiration of time limit for filing petition for review.

In re Marks, 22 Am. B. R. 568, 171 Fed. 281.

In re Greek Mfg. Co. (supra).

May be reviewed, though no formal exceptions are filed when such filing is not required by a local rule or order of the court.

In re People's Department Store Co. (D. C., N. Y.), 20 Am. B. R. 244, 159 Fed. 286.

In re Swift (D. C., Mass.), 9 Am. B. R. 237, 118 Fed. 348.

If no exceptions are taken the specific errors of law should be clearly set forth.

In re Covington, 6 Am. B. R. 373.

Upon review of an order or report of a referee, the judge may consider any point presented by the record whether raised or not before the referee.

In re Samuel Wilde's Sons (C. C. A., 2d Cir.), 16 Am. B. R. 386, 144 Fed. 972, 75 C. C. A. 601, affg. 13 Am. B. R. 217, 133 Fed. 562.

How the court will treat.

In re Doyle (D. C., N. Y.), 29 Am. B. R. 102, 199 Fed. 247.

In re Harris, 16 Am. B. R. 213, 143 Fed. 421.

Petition should "review order," not decision.

In re Chambers, Calder & Co., 6 Am. B. R. 709, 98 Fed. 865.

In re Octave Mining Co, 32 Am. B. R. 474, 212 Fed. 457.

66

Referee should certify a summary of the evidence."

In re Marengo County Mercantile Co., 29 Am. B. R. 46, 199 Fed. 474.

In re Kurtz (D. C., Pa.), 11 Am. B. R. 129, 125 Fed. 992.

Compare Crim v. Woodford (C. C. A., 4th Cir.), 14 Am. B. R. 302, 136 Fed. 34, 68 C. C. A. 584.

Duty of referee to make findings.

In re Turetz, 29 Am. B. R. 752, 205 Fed. 400.

In re Baker (D. C., Mass.), 32 Am. B. R. 378, 212 Fed. 765.

Practice on: Construing general orders XXI, (6) and XXVII.

In re Arti-Stain Co., 32 Am. B. R. 640, afïd. s. c. 32 Am. B. R. 643, 216 Fed. 942.

In re Smith (D. C., Tex.), 2 Am. B. R. 190, 93 Fed. 791.

In re Schimmel, 29 Am. B. R. 361, 203 Fed. 181.

District Court not bound by the referee's conclusions because the witnesses testified before him.

In re People's Department Store Co., 20 Am. B. R. 244, 159 Fed. 286. Generally speaking, questions before the District Court on petition to review should be limited to those involved in the issues before the referee, and other matters deemed waived.

In re S. Z. Lorch & Co., 28 Am. B. R. 784, 199 Fed. 944.

In re Stokes, 26 Am. B. R. 255, 185 Fed. 994.

A defeated candidate for office of trustee has no standing to review order of appointment. Those whose claims are rejected are proper parties to take this action.

In re Grossman (D. C., N. Y.), 34 Am. B. R. 32, 225 Fed. 1020.

Time limit.

Where no local rule prescribes.

Crim v. Woodford (C. C. A., 4th Cir.), 14 Am. B. R. 302, 136 Fed. 34, 68 C. C. A. 584.

In re Chambers, Calder & Co. (supra).

Bacon v. Roberts (C. C. A., 3d Cir.), 17 Am. B. R. 421, 146 Fed. 729, 77 C. C. A. 155.

In re Foss, 17 Am. B. R. 439, 147 Fed. 790.

When petitioner may be excused in view of mistake.

In re Nippon Trading Co. (D. C., Wash.), 25 Am. B. R. 695, 182 Fed. 959. Denied for laches.

In re Verdon Cigar Co. (D. C., Mich.), 27 Am. B. R. 56, 193 Fed. 813.

In Maryland, under local rule, 15 days.

In re Wink, 30 Am. B. R. 298, 206 Fed. 348.

In re Davison (D. C., N. Y.), 24 Am. B. R. 460, 179 Fed. 750.