404 F2d 886 Martin v. Mercantile Financial Corporation

404 F.2d 886

Herbert Ulous MARTIN, Appellant,

No. 26000.

United States Court of Appeals Fifth Circuit.

December 12, 1968.

Rehearing Denied January 21, 1969.

Bert C. Cushway, Tom Antonion, Atlanta, Ga., for appellant.

Samuel J. Zusmann, Jr., Francis Marion Bird, Jr., Jones, Bird & Howell, Atlanta, Ga., of counsel for Mercantile Financial Corporation; Lipshutz, Macey, Zusmann & Sikes, Atlanta, Ga., of counsel for the trustee.

Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.



The District Court denied a Petition for Review of an order of the Referee, wherein the appellant-bankrupt was denied a discharge.


In the order denying the discharge the Referee made complete and detailed "Findings of Fact and Conclusions of Law," all of which have support in the record and none of which have been shown to be clearly erroneous.


This appeal is controlled by Spach v. Strauss, 5 Cir. 1967, 373 F.2d 691, 643, 644, wherein the Court succinctly stated:


"The referee in Bankruptcy has reasonably broad discretion in granting or refusing a discharge to a bankrupt. When the referee's determination has been approved by the district court, it should not be disturbed on appeal except for the most cogent reasons. Minella v. Phillips, 5 Cir. 1957, 245 F.2d 687, 690.


"By confirming the referee's findings the District Court made them his own.


"Fed.R.Civ.P. 52(a) precludes reversal on a factual issue unless it is found to be clearly erroneous, Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774. The sole inquiry here, then, is whether the factual issues were resolved erroneously, and clearly so * * *."


On this appeal the bankrupt has the burden to demonstrate that the Referee's "Findings of Fact and Conclusions of Law" were clearly erroneous. He has not sustained this burden.


Accordingly, the District Court's order denying the Petition for Review should be and is hereby affirmed.