First Nat. Bank v. Abbott

Citations

• 165 F. 852
• 91 C.C.A. 538
• 1908 U.S. App. LEXIS 4806

Syllabus

<p>1. Bankruptcy (§§ 449, 468, 225*)— Practice in Taking, Testimony Before Referee and District Court — Rejected Evidence should be Taken and Preserved.</p> <p>A proceeding in bankruptcy is a proceeding in equity, and the taking of testimony therein and the review by appeals of hearings therein are governed by the samo practico as they are in suits in equity, except where otherwise specified.</p> <p>A referee' or the District Court tailing testimony in a controversy or hearing in bankruptcy is required by that practice to take, record, and, in case of an appeal, to return to the appellate court,, all the evidence offered by cither party to the controversy, that which is hold by them to he incompetent, irrelevant, or immaterial as well as that which they deem admissible, to the end that, if the appellate court is of the opinion that evidence rejected should have been received, it may consider it, render a final decree, and conclude the litigation without remanding the suit to procure the excluded evidence.</p> <p>From the general rule that all evidence offered should be received, the evidence of a privileged witness, privileged evidence, and evidence which clearly and affirmatively appears to be so incompetent, irrelevant, or immaterial that it would he an abuse of the process or power of the court to compel its production or permit its introduction, are excepted.</p> <p>[Fd. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 915, 980, 884; Dee. Dig. §§ 449, 408, 225.*]</p> <p>2. Bankruptcy (§§ 463. 228*) — Appeal and Error — Rulings Excluding Evidence Not Preserved Not Revtewable on Appeal — Remedy foe Refusal to Preserve.</p> <p>Rulings of a referee in bankruptcy or of a District Court excluding evidence not taken and returned to the appellate court are not reviewable there.</p> <p>The remedy for a refusal of a referee to take and preserve such evidence is an application to the District Court, and, failing there, to the Circuit Court of Appeals, for an order th