First National Bank v. Martin , 6 Idaho 204 ( 1898 )

HUSTON, J.

— This is an action upon the bond of an as-signee in bankruptcy. The record presented in this court contains the pleadings in the ease (consisting of the complaint, demurrer to complaint, the answer, demurrer to answer, notice of motion, and motion to strike out portions of the answer, and the rulings of the court thereon), the findings of fact and conclusions of law by the court, the decree, a bill of exceptions, notice of appeal, and what is designated in the record as an “Enumeration of Original Papers.” The hill of exceptions contains simply the motion of plaintiff to strike out a portion of the answer, the ruling of the court, sustaining the same, and the defendants’ exception thereto. Appellants have also presented the court with a bundle of papers, purporting to be the files and copies of the record in the bankruptcy proceedings in which the principal defendant L. D. Martin was appointed assignee, and the bond sued.on was given. It seems by the record that the attorneys in the case stipulated that these papers “may be omitted from the printed transcript on appeal, and the parties hereto agree that the said records and files, as the same are now in the above court, may be used upon the hearing of said appeal.” In making stipulations, counsel should not be unmindful of the rules prescribed by the court. Our rules require transcripts to be printed. We cannot consent to go into an examination of the files and records of a bankruptcy proceeding which was pending in the district court for several years, when the same, or such portions thereof as are essential to a proper presentation of the case, are not incorporated in the printed transcript. We think, however, that we can properly dispose of this ease from a consideration of the printed' transcript. The court finds that the said L. D. Martin has failed and neglected to account for the assets of said estate which came into his hands as such assignee; that there came into the hands of said assignee, as appears by the invoice of the assets of said bankrupt estate, property of the appraised value of $2,005; that the whole amount accounted for by said L. D. Martin as assignee was $857.37; that the total amount of claims presented against said estate was the sum of $624.32, or thereabouts; that no dividends were ever paid by said assignee to any of the creditors. These findings are based upon the evidence presented to the court, and, in the absence of any showing to the contrary, will be deemed correct. It is admitted by defendants that there came to the hands of said assignee, as such, assets of said bankrupt’s estate to the amount of $2,005. It is further admitted by the defendants that no dividend has ever been paid to the creditors of said estate. These facts, found by the court and admitted by the defendants, would seem to be sufficient to establish the liability of the defendants.

Counsel for appellants make five assignments of error. The first is that the complaint does not state facts sufficient to constitute a cause of action. The complaint contains a concise statement of the proceedings in bankruptcy leading up to and constituting the alleged breach of the conditions of the bond. This error is not well laid.

The second error assigned is in sustaining the demurrer to defendants’ answer, and the third assignment is in striking out a portion of the answer. There was no error either in sustaining the demurrer, or in allowing the motion to strike out. The answer admitted enough to entitle the plaintiff to judgment. The denials were mostly upon information and belief. To designate an answer as sham and frivolous which is made up of denials, upon information and belief, of matters entirely of record in a proceeding in which the defendant was a principal party, is emulative of the roaring of Nick Bottom. The defendant must of necessity have been conversant with ajl the proceedings in bankruptcy, and for him to deny under oath any knowledge of them is not calculated to inspire the court with that unfaltering trust which it is always desirable courts should have in the statements in pleadings prepared by counsel.

There is nothing in the fourth and fifth assignments of error. The fourth is to the entering of judgment against defendants, and the fifth is to the receiving in evidence of the papers (files and record) in the bankruptcy proceedings. We find no error in the action of the court in either instance. The points made in the defendants’ brief do not seem to have any particular relation to the assignments of error, but we think it unnecessary to discuss them in detail. As to the action of the district court in the bankruptcy proceedings, it is sufficient to say that such action is not here for review, nor could it be reviewable in this case. Judgment of the district court is affirmed, with costs to respondent.

Sullivan, C. J., and Quarles, J., concur. (December 7, 1898.)