Wanderer v. Bahr

This case presents the single question whether the claim sought to be enforced is a lawful claim against the assigned estate. Sec. 1693&, Stats. 1898, provides that the assignee or any creditor may have an order for the inspection of the books of the assignor, and for his examination and that of other witnesses as to the business affairs and condition of-the assignor. The last clause, of the section is as follows:

“If such examination is held at the instance of the as-signee the expense thereof shall be chargeable to the estate; otherwise at the expense of the creditor or the estate as the officer, before whom it is held shall determine and certify that it was instituted for the benefit of the creditors or for other reasons.”

The examination out of which the claim in suit is said to have arisen was instituted by Riemer & Brodesser, who were creditors of the assignor. The court commissioner certified that it was instituted in good faith and for the benefit of the creditors, and he taxed as costs of such examination the expense incurred by the moving creditors, before it was instituted, for services of an expert bookkeeper in making an inspection of the assignor’s books. On the basis of such certificate and taxation the court directed the assignee to pay such claim' out of the proceeds of the assigned estate. There are several reasons why this order was unwarranted. In the first place, the only expenses the court has any power to make a charge against the assigned estate are the expenses of examination. These include the witness fees, officers’ fees, and such other disbursements as are reasonably necessary in the proceeding.. The expense incurred by creditors for the services of expert accountants, incurred prior to the examination, are no part of the expense thereof. It is the expense of the examination, and not the expense of creditors incurred prior thereto, that may be paid out of the assigned estate. Any other construction of the statute might lead to *7abuses that would result in serious loss to the assigned estate. Moreover, the creditor wbo institutes tbe examination is tbe one primarily responsible for tbe expenses thereof. When the circumstances are such that it is proper to mate tbe assigned estate responsible for such expenses, they are payable to him, and not to the individuals wbo may have appeared as witnesses, or to whom be may have become indebted on account thereof. Tbe assignee is under no obligation to tbe persons wbo have appeared as witnesses, or wbo have claims against the creditor instituting tbe examination. Again, if tbe statute is to be construed as it reads, tbe circumstances are not present to warrant tbe order made. It says that, if tbe assignee instigates tbe examination, tbe expenses shall be paid out of the assigned estate; “otherwise at the expense of the creditor or the estate as the officer before whom it is held shall determine and certify that it was instituted for the benefit of the creditors of the assignor or for other reasons.” Giving the wording its grammatical and logical construction, it means that, if the officer shall certify that the examination was instituted for the benefit of creditors, then it shall be at the expense of creditors; if for other reasons, then at the expense of the estate. This is the plain reading of the law, according to its terms, but directly contrary to the construction contended‘for by the respondent. If the legislative intent was as the latter contends, the grammatical construction of the sentence is exceedingly unfortunate, and calls for further legislation.

By the Court. — The order is reversed, and tbe matter is remanded witb directions to tbe court to enter an order denying the petition.