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was required by the court. Accordingly he repaired to a railway station in Buffalo and was in the act (as his attorney deposes) of procuring "transportation and Pullman accommodation from Buffalo to Joplin, Mo.," when he was served with an order requiring him to submit to an examination pursuant to section 21a of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 551 [Comp. St. § 9605]) before a referee in bankruptcy in Buffalo at a date apparently 48 hours or thereabouts subsequent to the time of service.

Apparently Havens never appeared before the referee, nor in any way obeyed the order of the District Judge, but subsequent to the time when he should have appeared moved to vacate the order for examination on the ground that he, being a resident of Missouri, had voluntarily come within the Western district of New York in order to attend the trial of the petition against him, and that before he could return to his Missouri home he had been served with the order aforesaid.

This motion was heard upon affidavits showing that Havens claimed citizenship and residence in Missouri since some date in October, 1917; he did not specify any place within that state of which he became a resident after leaving Olean a few days before petition filed, but did make oath that his "principal places of business" had been for about a year at "Springfield, Mansfield, and Joplin in said state." On behalf of the petitioner it was shown that diligent inquiry at all of these places had failed to discover Havens or his actual whereabouts, except that "his mail should be forwarded to Williamsport, Pa., in care of" the attorney who appears for him on this appeal.

Upon this showing the District Court entered an order whereby the "service of the order [for examination] be and the same is hereby set aside and held for naught, upon the ground that the alleged bankrupt was at the time of said service a resident of the state of Missouri temporarily within the territorial jurisdiction of this court in order to attend the trial of the issues in this proceeding, and for that reason privileged from the service of the order aforementioned." Thereupon the Exchange National Bank took the third petition to revise, which is No. 95 on our docket for the present term.

Gibbons & Pottle, of Buffalo, N. Y. (M. C. Rhone, of Williamsport, Pa., of counsel), for Havens.

Hastings & Jewell, of Olean, N. Y. (Edward W. Hatch and Henry A. Rubino, both of New York City, of counsel), for Exchange Nat. Bank.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above). [1] 1. The petition of Havens asserts in substance that the District Court was without jurisdiction to do anything but dismiss the original petition, and therefore erred in allowing any amendment.

[4] Jurisdiction is no more (for present purposes) than the power to hear and determine a cause. Byers v. McAuley, 149 U. S. 628, 13 Sup. Ct. 906, 37 L. Ed. 867. Not only did the District Court possess jurisdiction in this fundamental sense, but it was the only court that could originally hear and adjudicate on the matters presented or sought to be presented by the petition as first framed.

Being thus rightfully possessed of the cause, the court also enjoyed that power of amendment which is incidental to all judicial administration and vital to the ends of justice. Bank v. Sherman, 101 U. S. 406, 25 L. Ed. 866. We are not permitted by this petition to inquire into the sufficiency of the Exchange Bank's first pleading. It was evidently regarded by the District Judge as "too vague and general," and therefore amendment was required. This is common practice.

In re Rosenblatt, 193 Fed. 640, 113 C. C. A. 506; In re Riggs Restaurant Co., 130 Fed. 691, 66 C. C. A. 48-decisions plainly indicating approved practice in this circuit.

The amendments made and permitted to stand were no more than a restatement, descending into unnecessary particulars of the original petition, and we hold that such amendment was properly permitted.

[2] 2. The bank's petition for revision presents a question slightly different from the cases thought to support so much of the order as struck out of the amended petition the allegation of concealment by Havens of the proceeds of the mortgage of May, 1917.

It was assumed below that this was an act of bankruptcy not set forth in the original petition and only charged in and by an amendment made more than four months after its commission. Whether such an act, occurring more than four months before amendment, could be introduced into a pending proceeding, was thought an "interesting question" by Lacombe, J., in the Riggs Case, supra. This court answered it in the negative (In re Haff, 136 Fed. 80, 68 C. C. A. 646), the matter not having been covered by In re Sears, 117 Fed. 294, 54 C. C. A. 532, which was correctly explained and limited in application. by Gleason v. Smith, 145 Fed. 897, 76 C. C. A. 427. The general rule as stated in the Haff Case has been approved, especially in the Ninth circuit (Walker v. Woodside, 164 Fed. 685, 90 C. C. A. 644), and in the Seventh (In re Brown Commercial Car Co., 227 Fed. 390, 142 C. C. A. 83). Our own decision (In re Condon, 209 Fed. 801, 126 C. C. A. 524) is (in this respect) but a reassertion of the Haff Case.

This rule rests in theory upon the reasoning of Justice Nelson in Re Craft, 6 Blatchf. 177, Fed. Cas. No. 3,317, where it was pointed out that "to allow a substantial amendment—that is, one going to the whole foundation of the proceeding nunc pro tunc-would be a direct violation" of a limitation "obviously for the benefit of the debtor," namely, the requirement that proceedings must be brought within a limited time after the act of bankruptcy is committed; i. e., under the present statute, four months.

If, therefore, the creditors' allegations in respect of the proceeds of the $30,000 mortgage are to be regarded as stating an act of bankruptcy committed and complete more than four months before amended petition filed, the order complained of was right. But the allegations stricken out are to the effect that the concealment complained of not only occurred within four months of original petition, but had continued down to the date of amendment.

The concealment of property made an act of bankruptcy by section 3 may be a continuing concealment and the four months period may run from the date of discovery. Citizens' Bank v. De Pauw Co., 105 Fed. 926, 45 C. C. A. 130. It was, we think, clearly the intent of the pleader to allege a continuing concealment, not discovered until within four months of amendment. The language is vague, and if the District Judge had required a further amendment, setting forth the circumstances of concealment and discovery with greater particularity, we should have regarded such an order as the exercise of reasonable discretion and therefore not reviewable. In re Rosenblatt, supra. But

255 F.-31

to strike out the allegations altogether was, we think, error, because it prevented presentation to the court of what (reading the pleadings benevolently) may be shown to be entirely within the decisions above referred to.

[3] 3. It being admitted that the order requiring Havens to attend and be examined was, under Cameron v. United States, 231 U. S. 710, 34 Sup. Ct. 244, 58 L. Ed. 448, proper, it was error to practically nullify the order by granting the alleged bankrupt immunity from service.

We are of opinion that all the facts shown in evidence inevitably point to the conclusion that Havens had departed from Olean a few days before this petition in bankruptcy was filed, and thereafter practically secreted himself. Against such evidence Havens' statement of a conclusion that he had been "since October, 1917, a citizen and resident of the state of Missouri," is no more than an effort to deny the logical result of the facts shown against him.

As, however, he may hereafter find it advisable to show himself within the Western district of New York, as he did in April last, we shall consider whether an alleged bankrupt, while attending the trial of an involuntary petition against him, is privileged from examination under section 21a; for, if this be true, he must also be privileged from performing any other duty laid upon him by the act and usually enforced by a court order.

It is argued under section 7 of the act (Comp. St. § 9591) that Havens could not be required to attend for examination at Buffalo, because it was more than 150 miles distant from his home or principal place of business. Assuming that both his personal and business homes were most remote from Buffalo, we think the section referred to has no application, because he had already come there. Inasmuch as he refused to obey the order at all, the question whether (assuming a remote residence) he could have been compelled to continue in attendance without having his expenses paid is a question not before us.

It is true that one going to a town or place in order to attend a trial is secure from service of process eundo morando redeundo, even though he be a party. Hale v. Wharton (C. C.) 73 Fed. 739. But a party who is attending the trial of his cause is assuredly subject to the orders of the trial court in respect of the matter under adjudication. What the District Court had jurisdiction over was the question whether Havens was a bankrupt, and the examination directed, since it must relate to the "acts, conduct or property" of the alleged bankrupt himself, was a most important part of that investigation. The argument for immunity really assumes that any bankrupt who chooses to remove himself from the territorial jurisdiction of adjudication is by the fact of removal entitled to all the privileges of a stranger; indeed, rather more, in that he can attend the bankruptcy court for such purposes as he pleases, and decline to attend when he does not please.

But the duties of a bankrupt are laid down by the statute, and so are his privileges. Section 9 (Comp. St. § 9593). The order complained of exceeded the statute. If the bankrupt removes into another district, ancillary proceedings are open to his creditors. Babbitt v. Dutcher, 216 U. S. 102, 30 Sup. Ct. 372, 54 L. Ed. 402, 17 Ann. Cas.

969; In re Madson Steele Co., 216 U. S. 115, 30 Sup. Ct. 377, 54 L. Ed. 407. But when the bankrupt is in attendance upon the court lawfully engaged about the business of his adjudication, he must submit to all the lawful orders of that court, including examination under section 21a. This we regard as inherent in the nature of the jurisdiction created by the Constitution and defined by the Bankruptcy Act. It is therefore ordered, in No. 75, that the petition of the Exchange National Bank be sustained, with costs, and that of Havens be dismissed, with costs, and in No. 95 that the petition of the Exchange National Bank be sustained, with costs.

ÆTNA LIFE INS. CO. OF HARTFORD, CONN., v. RYAN.
(Circuit Court of Appeals, Second Circuit. December 16, 1918.)

No. 106.

1. EVIDENCE 126(3)—RES GESTE-DECLARATION.

Declaration of deceased, when stricken at dinner, that he had been hit by door of subway car, is inadmissible as part of res gestæ, in action on his accident policy; it not, appearing how long after accident, the res gestæ, the declaration was made.

2. INSURANCE

466-ACCIDENT INSURANCE-SOLE CAUSE OF DEATH.

To recover on policy insuring against death resulting, directly and independently of all other causes, from bodily injuries effected solely through external, violent, and accidental means, plaintiff must show an accident which was the sole cause of the death; it not being enough that an accident was the proximate cause, if death would not have resulted but for a pre-existing disease.

In Error to the District Court of the United States for the Eastern District of New York.

Action by Catherine Ryan against the Etna Life Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings. error, plaintiff in error hereinafter being called "defendant," and defendant in error hereinafter being called "plaintiff." Reversed.

See, also, 253 Fed. 457.

James B. Henney and Bouvier, Beale & Geer, all of New York City (Phelan Beale, of New York City, of counsel), for plaintiff in

error.

Edward H. Daly, of New York City (Edward H. Daly, of New York City, of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS, Circuit Judge. The plaintiff has obtained a judgment for $12,045.84 damages and costs entered against the defendant, after a trial before a judge and jury.

The action was brought by plaintiff as the beneficiary under an accident insurance policy upon the life of her husband.

The complaint alleges that the insured lost his life because of an injury he sustained while a passenger on a train of the Interborough

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Rapid Transit Company in one of its subway stations in the city of New York. It is alleged that while he was entering the train he "sustained bodily injuries effected solely through external, violent, and accidental means, to wit, by being struck by a closing car door of said train, which blow by said door precipitated, hastened, and developed a cerebral hemorrhage in the said Michael J. Ryan, who had arteriosclerosis, which hemorrhage caused the death," etc. The injury was received on August 25, 1917, and death resulted on September 9, 1917.

The policy provided that no indemnity was payable unless the insured was injured or came to his death, "directly and independently of all other causes, from bodily injuries effected solely through external, violent or accidental means, suicide (sane or insane) not included." The defendant sets up the defense that the beneficiary died as a result of disease.

The insured at the time of his death was 53 years old. He was bandmaster in the Catholic Protectory in the borough of the Bronx in the city of New York. On the morning of August 25th he left his home in Brooklyn and went by subway to the Protectory, which he reached about noon. He sat down in the dining room to eat his dinner, and about 12:15 p. m., while at the table and when he was speaking, he suddenly became dumb and could not hear when spoken to and fell to the floor and could not move his left arm. He was picked up and placed on a chair. An ambulance was called, and he was taken to the hospital, where he died on September 9th.

[1] It appears that a witness who assisted in picking him up when he fell in the dining room of the Protectory was asked whether he had any conversation with Ryan after he fell. He replied:

"I was near him all the time. He was mumbling to me and the brothers that he was hit by the subway door, the center door.”

It was moved to strike out the answer on the ground that it was too remote and not part of the res gestæ. The objection was overruled, and the court allowed the answer to stand, stating that the issue to which the statement had reference was "as to whether there was an occurrence or blow at all; and, as to that, I think this statement is a part of the res gesta." The witness did not testify as to any statement made by Ryan as to when he was hit, or where upon his body or other part of him he was hit.

The evidence was certainly inadmissible as a part of the res_gestæ. It does not appear when Ryan was hit by the subway door. It may have occurred at one time as well as another. No one knows how long after the event the narration was made. The res gesta was the accident. The declaration made by Ryan was no part of it. It was not made at the time of the accident, and it does not appear that it was so nearly contemporaneous with it as to throw light upon it. Res gestæ is admissible because and only because it is so connected with the event which it describes that it is a contemporaneous part of and happens with the event. Vicksburg & Meridian Railroad v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299; Boston & Albany Railroad Co. v. O'Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L.

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