
    In re MILLER & HARBAUGH. HARBAUGH v. CLARK.
    No. 6433.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 26, 1931.
    Barnett H. Goldstein, -H. E. Collier, and S. J. Bischoff, all of Portland, Or., for appellant.
    Coan & Rosenberg, of Portland, Or., for appellee.
    Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.
    
      
      For opinion denying rehearing, see 54 F.(2d) 612. ceptance of tlie office and his official oath, or be deemed to bave refused to serve, but sucb filing may be made at any time before action to fill the vacancy has been taken.”
    
   WILBUR, Circuit Judge.

This is an appeal from an order adjudging appellant guilty of contempt on refusing to obey a turnover order. Appellant testified consistently throughout the turnover proceedings, and in the contempt proceedings, that he did not have in his possession any property to turn over. Many questions are raised in the briefs concerning the power of the court to hear or consider evidence of the respondent in proceedings instituted to obtain a turnover order, to the effect that he did not have and never did have the property which he was directed to turn over. Whether or not such evidence can be considex'ed, and the weight to be attached to it, are matters frequently considered by the courts, but which have been set at rest in a recent decision of the Supreme Court of the United States written by Chief Justice Taft. Oriel et al. v. Russell, Trustee (Prela v. Hubshman, Trustee), 278 U. S. 358, 49 S. Ct. 173, 73 L. Ed. 419. Here an order was made, on August 19, 1930, directing appellant to turn over to the trustee within five days from the date of said order: «* * * Merchandise consisting of jewelry used by the bankrupt in connection with its said business as a retail jeweler on the premises located at the Buyers Building, 3rd and Alder Streets, Portland, Oregon, of the cost value to the bankrupt in the sum of $6,933.32 belonging to the bankrupt’s estate in bankruptcy.”

Thereafter a petition for review was filed by appellant and a hearing was had thereon in the District Court, and on October 29, 1930, an order of said court was made and entered affirming and adopting in every particular and in all respects said findings of fact and order of the referee, it being in said order of the District Court further ordered that appellant, within ten days from the date of the court’s order, turn over and deliver to the trustee said merchandise, which was described in the language above quoted, the order thereupon stating that “ * * * said merchandise was found to be in the bankrupt’s possession on September 9th, 1929, and is now in the possession of Paul C. Harbaugh, managing director of the bankrupt, or under bis control and is by said Paul C. Harbaugh being wrongfully, unlawfully, knowingly and intentionally withheld and concealed by him from George P. Clark, Trustee herein.”

On November 26, 1930, twenty-seven days after said order was entered, and seventeen days after default by appellant, tbe trustee filed a motion, supported by bis affidavit, to punish appellant for contempt for failure to obey said order of tbe District Court. Thereupon, on November 26, 1930, tbe District Court made and entered a rule to show cause, returnable December 8, 1930, why appellant should not be adjudged guilty of contempt of court and punished therefor for failure to eomply with said order of October 29, 1930. In said rule, the merchandise is described substantially in the words last above quoted herein. Thereafter the District Court made an order adjudging appellant to be in contempt in failing and refusing to turn over to' the trustee the merchandise in question, describing it in the language of the turnover orders and of the rule to show cause. Said order further directed the commitment and imprisonment of appellant until he should obey the court’s turnover order.

Appellant contends that the turnover orders and the order to punish for contempt are invalid because they do not describe the property to be turned over with reasonable certainty. We are persuaded that this contention is well taken, and that the descriplion of: the property m question, as contained in said orders, is too uncertain to constitute the basis of contempt proceedings. Said description does not describe, nor does it attempt to' describe, tho property which tho bankrupt is directed to turn over to the trustee.

The orders in question are entirely too indefinite to justify tho imprisonment of the bankrupt for failing to obey them. A somewhat similar but more definite order was bold to be void by the Circuit Court of Appeals for the Fifth Circuit in Samel v. Dodd, 142 F. 68, 70. There the order directed tho bankrupt to pay over to tho trustee $2,417.-83. It is there said: “The trial court found, as matters of fact, that a large amount of goods, not specifically described, was withdrawn by tho bankrupt's from their stock; that such goods were held by them in some way in fraud of their creditors; and that it was within the power of the bankrupts to produce the same and turn them over to the trustee. The bankrupts, by the terms of the order, were adjudged guilty of contempt fin failing and refusing to turn over to the trustee assets belonging to the bankrupts’ estate, in violation of law.’ And it was further ordered and adjudged, following the language of the order, ‘that said named parties pay over to Harry Dodd, the trustee in bankruptcy, the sum of $2,417.83,’ and upon failure to make such payment they were ordered committed to jail. It is thus observed that the court found goods, wares, and merchandise to be in possession of the bankrupts, and, in effect, rendered judgment for their value, and ordered the commitment of the bankrupts until tho amount should be paid. We are of the opinion that the order cannot he sustained. If the bankrupts had in their possession merchandise, which should have been delivered to the trustee, the appropriate order would have been for the delivery of merchandise. If they had money, which formed part of their estate, they should have been required to pay over money.” Certiorari denied 201 U. S. 646, 26 S. Ct. 761, 50 L. Ed. 903.

While tho invalidity of the turnover order is sufficient to dispose of the appeal and requires a reversal of the order adjudging the appellant in contempt, it should perhaps be further stated that it is apparent from tho record, that the attempted designation in the turnover order of the merchandise sought to ho recovered was arrived at in much the same manner as that set forth by Judge Dickinson of the District Court of the Eastern District of Pennsylvania, In re Tabak, 34 E.(2d) 209; that is, by the taking of an inventory showing the value of the stock of merchandise turned over by the bankrupt to the trustee and by subtracting the total cost value to the bankrupt of said inventoried stock from the total cost value thereof as disclosed by an examination of the bankrupt’s books and records and admissions by appellant as having been purchased during the six months’ period in which the bankrupt had engaged in business, and also by subtracting from the to^tal cost value last mentioned the total value, at cost to the bankrupt, of the stock sold ánd of materials used for repairs, it was determined that merchandise of the total value indicated by the balance was or should have been in the possession of the bankrupt. In the case at bar, the difficulty in arriving at clear and definite decision in the matter, however) arose from the fact that the books of the company did not show what particular articles of property purchased by the bankrupt had been sold. Consequently it could not be determined from the books of the bankrupt what particular items of personal property he had on hand or should have had on hand at the time of bankruptcy. In default of such evidence, the referee adapted his order to the situation by requiring the delivery by the bank-rapt to the trustee of goods having an aggregate invoiced value of $5,933.32. By this method, the referee avoided the necessity of determining the specific articles of personal property it was the duty of the bankrupt to turn over.

The turnover order is void, and the order adjudging the bankrupt in contempt is reversed. ' •  