On April 25, 1963, the referee filed a written opinion, findings of fact, and conclusions of law sur Mr. Thorn's petitions for allowance. The referee entered a written order for separate allowances in amounts identical with those made orally on April 8, 1963. The referee's written findings and discussion contained nothing of substance is addition to the matters already considered.
Mr. Thorn filed no additional petition for review of the referee's written order of April 25, 1963. It is now contended that this omission is fatal, that the referee's order is final, and that petitioner is foreclosed from review by this Court.
We disagree. Sec. 39, sub. c of the Bankruptcy Act provides for review of an 'order of a referee'. Petitioner was justified in believing that the referee's oral order of April 8 was such an order. The proceedings of that day were taken stenographically and subsequently transcribed. The referee did not indicate an intention that his oral order, stenographically taken for transcription, was not dispositive of petitioner's claims; nor did he indicate an intention to supplant or confirm his oral order by a later writing. On two occasions during the proceedings, the referee stated to petitioner 'You have an automatic exception'. We can conceive no purpose in these statements, if not for the purpose of review. If petitioner had not filed his petition for review within ten days of the referee's oral order, but had awaited a written order, which might not have been forthcoming, he would then have been met by the contention that his omission was fatal to review. It is neither the purpose nor the policy of the law to impale the unwary on the horns of a dilemma. Moreover, as we have stated, there was nothing materially new or different in the referee's written findings, which were essentially only confirmation of his earlier decision. To hold that petitioner, under such circumstances, was obliged to refile his earlier petition or to file its facsimile would impose on petitioner a duty to perform a vain or useless act, a view repugnant to the law.
We conclude, therefore, that the petition for review of the referee's order was timely.
On the merits of the case, it is our view that justice would be served by ordering the case down for the taking of testimony before the Court. See, In re Leech, 171 F. 622, 625 (6th Cir. 1909).