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IN RE BOREK

January 7, 1960

In the Matter of Michael E. BOREK, Bankrupt. CAMDEN LIME COMPANY, Plaintiff,
v.
Michael E. BOREK, Defendant



The opinion of the court was delivered by: MADDEN

This is an application on the part of the alleged plaintiff, Camden Lime Company, for the issuance of a writ of capias ad satisfaciendum against the alleged defendant, Michael E. Borek. The facts briefly stated are, as follows:

 On April 25, 1958, Michael E. Borek filed a voluntary petition in bankruptcy in this Court and was duly adjudicated a bankrupt, accordingly, the matter was referred to the Honorable William Lipkin, Referee in Bankruptcy of this Court. On June 25, 1958, specifications of objections to discharge were filed with the Referee by the alleged plaintiff, Camden Lime Company, making three main objections to the discharge of the bankrupt upon various allegations of fraud. Hearings were held by the Referee on September 8 and October 8, 1958. On October 9th the Honorable Referee filed an order declaring the claim of the Camden Lime Company nondischargeable because of the fraud of said bankrupt, Michael E. Borek, and on November 18, 1958, after notice and hearing, the Referee determined the amount of such claim to be $ 6,445.74.

 On December 15, 1958, the Referee, without notice or hearing, filed an 'Order amending orders that claim of Camden Lime Company is not dischargeable, fixing amount thereof and providing for entry of Judgment.' In the preamble of the order is recited the gist of the orders of October 8 and November 18, 1958. It, thereafter, provides for the amendment of such orders to allow the entry of judgment in this Court in favor of the Camden Lime Company against the said Michael E. Borek, personally, in the sum of $ 6,445.74 and authorizes and directs the Clerk of the Court to docket the same with costs, which the Clerk did. No review was taken from any of said orders of the Referee.

 On January 12, 1959, the Camden Lime Company, through counsel, applied to this Court for the issuance of a capias ad satisfaciendum and the same was placed upon the motion calendar for February 6, 1959. Thereafter, the Court experienced great difficulties with the bankrupt's counsel until finally on May 26, 1959, counsel for the bankrupt filed a brief herein raising for the first time the question of the jurisdiction of the Referee to enter judgment in this Court personally upon such claim.

 The applicant, Camden Lime Company, has filed a reply brief urging the two main propositions that presently confront the Court, namely, 'The referee had the authority to enter the judgment and the bankrupt cannot be heard at this late date to question the jurisdiction of the Court and attack the judgment.'

 Reviewing these points in the inverse order would seem appropriate here, thus: Can the Court now question the correctness of the judgment?

 Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides:

 'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

 '(4) The judgment is void; * * * The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.'

 This Court and the Referee's authority and jurisdiction are statutory and if the action of the Referee was beyond the scope of his statutory authority the judgment entered thereon would be void because this is the sole support of such judgment. It, therefore, seems necessary for the determination of the entire issue to see if such judgment was or was not void.

 If then it is determined that the Court lacked jurisdiction of the subject matter even the requirement of a reasonable time cannot be given a literal interpretation for the mere passage of time cannot give validity to a void judgment.

 '(a) The courts of the United States hereinbefore defined as courts of bankruptcy are hereby created courts of bankruptcy and are hereby invested, within their respective territorial limits as now established or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in proceedings under this title, in vacation, in chambers, and during their respective terms, as they are now or may be hereafter held, to --

 '(15) Make such orders, issue such process, and enter such judgments, in addition to those specifically provided for, as may be necessary for the enforcement of the provisions of this title: Provided, however, That an injunction to restrain a ...


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