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IN RE BRAHM

January 6, 1941

In re BRAHM


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a hearing on a petition filed by the bankrupt to review the order of the referee denying the bankrupt's discharge dated July 24th, 1940.

The trustee filed with the referee objections to the discharge of the bankrupt containing three specifications, but as the referee sustained only the one, that is, the first specification, and dismissed the second and third as not sustained, we will direct our attention only to the first specification, which reads as follows:

 "First: For the reason that the bankrupt destroyed, concealed, or failed to keep or preserve, or mutilated or falsified, books of account or records from which his financial condition and business transactions might be ascertained as follows:

 "That the bankrupt turned over to Peter F. Pinto, Esq., Receiver in Bankruptcy herein, certain books and records, amongst which was a ledger purporting to be a record of customers' charge accounts, and the said record is not complete and does not show certain accounts which should have appeared therein, and further, that the books and records of the bankrupt, purporting to show the actual sales made by the bankrupt, do not in any way indicate the amount of moneys received on each account; nor do they indicate the disposition of the moneys received."

 Before entering on the consideration of the main issue I will dispose of the assignment of error paragraph 3, subdivision a, which reads as follows: "a. The decision of the Referee was not made within the time permitted for the making of a decision and order, and the time of the Referee to decide was not extended by stipulation or otherwise."

 Rule 17 of the Bankruptcy Rules of this court, subdivision a, provides as follows: "(a) Referees shall make and file their decisions in all cases within two months after the final submission unless such time be extended by order of a Judge of this Court, and shall forthwith give written notice of such filing to the parties or their attorneys."

 It is to be observed that the rule says nothing about the making of the order within the time stated but only relates to the filing of the referee's decision.

 The hearing on the trustee's objections was had before the referee on January 26th, 1940, when the matter was marked submitted subject to submission of memoranda on behalf of both the trustee and the bankrupt. Additional time was requested on behalf of the bankrupt to file his memorandum, and it was extended by the referee until May 13th, 1940.

 On May 11th the bankrupt's memorandum was filed with the referee, and the trustee's memorandum having already been filed, the matter was finally submitted to the referee on May 11th, 1940.

 The referee filed his decision on July 11th, 1940.

 Under the well-known rule of statutory construction, which is found in Section 31 of the Bankruptcy Act, 11 U.S.C.A. § 54, when an act is to be performed within a given time after the happening of a certain event (which in this case was the final submission to the referee), May 11th, the day of final submission must be excluded in the computation and July 11th included which make the time of the rendering of the referee's decision within exactly two months after final submission.

 That assignment of error was not sustained.

 This brings us to a consideration of the first ...


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