In re SYKES

In re SYKES. (District Court, W. D. Tennessee. March 1, 1901.) 1. BANKRUPTCY- Petitions- En.rtjo. All petitions in bankruptcy proceedings should be filed with the clerk, and not sent, directly to the judge. 3. Same — -Notice. A petition by a. bankrupt asking a special reference to the referee, requiring him to take proof and report whether or not lie is entitled to be discharged, will not be considered until trustee or creditors have notice of petition. This petition of the bankrupt states that he finds his application for discharge “obstructed ” by the fact, as he supposes, that within four months before he filed his petition in bankruptcy he had executed a mortgage to secure to the Second National .Bank notes due to it. The trustee commenced proceedings to vacate the mortgage in the courts of the state, where the demurrer of the bank has been overruled, but no further proceedings have been had. The bankrupt now asks that a special reference be made to the referee in bankruptcy, requiring him to take proof and report whether or not he is entitled to his discharge. [MAJORITY — HAMMOND, J.] HAMMOND, J. This petition comes to me by mail, without more than its inclosure in the envelope. The practice of so sending papers in these bankruptcy cases is increasing, and the court must protest against it as an improper practice. All such petitions should he filed with the clerk, where proper attention will be given as to security for costs, issuance of process, or notice, and the subsequent filing of the answer or other pleadings, and the like. Properly, the court has no duty during this course of proceeding, except to hear when brought to its attentibn in tbe regular order of practice, and to determine any dispute concerning tbe procedure or contested matter arising for decision. Otherwise, tbe judge bas no concern- with- tbe case. A ■practice of sending papers directly to bim in this way imposes, in effect, tbe position of legal adviser to tbe parties, wbicb properly be should not occupy. He cannot determine or advise the steps to be taken with tbe paper, or give direction to those steps, without embarrassment; and it is tbe duty of counsel, and not tbe court, to superintend the procedure. All communication by correspondence or otherwise should be with tbe clerk, until tbe matter is ripe for tbe attention of tbe judge. - . ' . On the face of this petition there is indicated a claim by tbe trustee that the bankrupt is not entitled to his discharge, but there does not appear to be a necessity for any especial report from tbe referee. It does not appear that the trustee or any creditor bas raised an objection to tbe discharge, or filed any specification, in opposition thereto, as required by the practice of tbe court. Nothing appears on that subject in this petition, and the court cannot undertake to look up the papers, or examine tbe records, to inform itself of tbe condition of tbe case in respect of this. Again, tbe trustee or creditors have had no notice of this petition, and it should not be considered by the court until they have been notified and bad án opportunity to be heard. These facts are mentioned here only to show tbe impossibility of having such proceedings heard by sending a paper to tbe judge by mail. The clerk will file the petition, and notify counsel and the trustee of this action of tbe court.