In re Dreeben ( 1900 )

MEEK, District Judge.

Upon tbe application of Israel Dreeben, Esq., and John Oburcb, Esq., wbo have presented a claim- against tbe bankrupt estate of Louis I. Dreeben, tbe following question is certified by Eugene Marshall, Esq., referee in bankruptcy, for my opinion tbereon:

“Whether I, as referee in bankruptcy, had the right to suspend the claim of said Israel Dreeben and John Church for attorney’s fees until the testimony of Louis I. Dreeben, the bankrupt, could be taken in relation to said claim?”

From tbe record before me, it appears that Israel Dreeben and John Oburcb were tbe attorneys for Louis I. Dreeben, tbe bankrupt. They prepared bis petition in voluntary bankruptcy and bis schedules, and performed other services usual and necessary to be performed for a voluntary bankrupt wbo brings a fund into court with him for distribution among bis creditors. Tbe creditors in due course made application to tbe referee to require Louis I. Dreeben, tbe bankrupt, to be examined. Tbe examination was ordered, and tbe bankrupt’s testimony was taken, but be absconded and left tbe territorial jurisdiction of tbe court before bis testimony was written out and signed by him. Sübsequently bis attorneys presented their claim to tbe referee for allowance. The referee, after taking the testimony of the attorneys in relation to the services they had performed for the bankrupt, was not fully satisfied, and entered Ms order to the effect that the claim of these attorneys be suspended until the testimony of the bankrupt could be taken in relation thereto, and it is of this action of the referee that the attorneys complain. I am of the opinion that the referee, not being satisfied with the evidence introduced before Mm relative to the reasonableness of the claim of the attorney’s fees, had the right to suspend action on said claim for a reasonable time in which to secure the testimony of the bankrupt himself in relation thereto. In event, however, it should appear that it is impossible to secure the testimony of the bankrupt-upon the question, I think it would be the duty of the referee to pass upon the claim, in view of the evidence in relation to it which is now before Mm. Those who have claims are, by the terms of the bankruptcy act, limited to a specific time within which to prove them up, and it would not be fair to tbe claimants to withhold action on their claims until the time provided by statute in which claims can be proven up had fully expired. The referee is directed to proceed in accordance with the views herein expressed. The costs incurred by reason of the certification of this question to the judge for Ms review should be paid out of the funds belonging to the estate of the bankrupt.