Sidebilder
PDF
ePub

jurisdiction of controversies arising in bankruptcy proceedings from the "Courts of Bankruptcy from which they have appellate jurisdiction in other cases."1 A writ of error is the proper

§ 666. 130 St. at L. 553, § 24. The words "bankruptcy proceedings' are used in the statute in contradistinction to controversies arising out of the settlement of the estates of bankrupts. First Nat. Bank of Denver v. Klug, 186 U. S. 202, 46 L. ed. 1127; First Nat. Bank v. Chicago Title & Trust Co., 198 U. S. 280, 49 L. ed. 1051. In controversies arising in bankruptcy proceedings, and in plenary suits by and against trustees in bankruptcy, the Circuit Courts of Appeal take jurisdiction by appeal or by writ of error, as the case may be, in the same manner that they take jurisdiction of other Federal questions. See infra & 693. A dispute which involves a distinct and separate issue may be a controversy reviewable by appeal, although it is so far connected with the bankruptcy proceedings as to be capable of summary disposition without a plenary suit. Weidhorn v. Levy, 253 U. S. 268, 271; reversing supra, § 610. By controversies arising in bankruptcy proceedings'' are meant, those independent of plenary suits, which concern the bankrupt's estate and arise by intervention, or otherwise, between the trustee representing the bankrupt 's estate and claimants asserting some right or interest adverse to the bankrupt or his general creditors. Swift & Co. v. Hoover, 242 U. S. 107; Re Mueller, C. C. A., 135 Fed. 711. See Hinds v. Moore, C. C. A., 134 Fed. 221; Re Friend, C. C. A., 134 Fed. 778; Knapp v. Milwaukee Tr. Co., 216 U. S. 545, an intervention to estab

lish a lien; Barnes v. Pampel, C. C. A., 192 Fed. 525; Rison v. Parham, C. C. A., 219 Fed. 176; Emerson v. Castor, C. C. A., 236 Fed. 29. But see Re Lee, C. C. A., 182 Fed. 579. The words "proceedings in bankruptcy," cover questions between the alleged bankrupt and his creditors, as such, commencing with the petition for adjudication, ending with the discharge, and including matters of administration generally, such as appointments of receivers and trustees, sales, exemptions, allowances, and the like, to be disposed of summarily, all of which occur in the settlement of the estate. Re Friend, C. C. A., 134 Fed. 778, 780; Schuler v. Hassinger, C. C. A., 177 Fed. 119; Re Charles Knosher & Co., C. C. A., 197 Fed. 136. It was held that an order making an allowance for counsel fees after a settlement pending the petition of involuntary bankruptcy but before adjudication was a proceeding not in bankruptcy but to avoid bankruptcy in which the court acted as arbitrator, and was consequently not appealable. Re Jacobson, C. C. A., 239 Fed. 79.

An appeal is the proper method to review a final decree or order in a proceeding by a trustee in bankruptcy for the sale of land free of liens or claims and the marshaling of the proceeds. Robert Moody & Son v. Century Savings Bank, 239 U. S. 374; Re Hartzell, 209 Fed. 776. See Hendricks v. Webster, C. C. A., 159 Fed. 927. Including a case where one of the respondents to the trustee's petition claims title

method of reviewing a judgment in an action at law, brought

to the land. Sauve v. M. L. More
Inv. Co., C. C. A., 248 Fed. 642.
In a proceeding by creditors of a
partnership for the marshaling of
partnership and individual assets,
Burleigh v. Foreman, C. C. A., 125
Fed. 217. In a proceeding by a
trustee or creditor for the preserva-
tion of the lien of a creditor's at-
tachment and the enforcement
thereof for the benefit of the estate,
Globe Bank and Tr. Co. v. Martin,
236 U. S. 288; affirming Re Martin,
C. C. A., 201 Fed. 31, 36. In a suit
in equity brought by a trustee in
bankruptcy in a District Court of
the United States to recover prop-
erty fraudulently or preferentially
transferred by the bankrupt. Re
Jacobs, C. C. A., 99 Fed. 539; Re
Hamilton Automobile Co., C. C. A.,
198 Fed. 856; Kirkpatrick V.
Harnesberger, C. C. A., 199 Fed.
886; or a proceeding begun by a
petition, which is in effect a suit in
equity, instituted to set aside a
transfer in fraud of creditors,
Carey v. Donohue, C. C. A., 209
Fed. 328; Graham v. Faith, C.
C. A., 253 Fed. 32; or a pref-
erence, Doroshow v. Ott, C. C.
A., 134 Fed. 740; McCarty V.
Coffin, C. C. A., 150 Fed. 307;
Thomas v. Woods, C. C. A., 173 Fed.
585; Barnes v. Pampel, C. C. A.,
192 Fed. 525; Re Raphael, C. C. A.,
192 Fed. 874; T. E. Wells & Co.
v. Sharp, C. C. A., 208 Fed. 399;
Home Bank for Savings v. Lohm,
C. C. A., 223 Fed. 633; Re Russell,
C. C. A., 247 Fed. 95; Bridgeton
Nat. Bank v. Way, C. C. A., 253
Fed. 731; Bassett v. Evans, C. C.
A., 253 Fed. 532; Bridgeton Nat.
Bank v. Ray, 253 Fed. 731; Bassett
v. Evans, C. C. A., 263 Fed. 532.

[ocr errors]

In a proceeding, whether instituted
by petition or bill in equity, begun
by an adverse claimant, to recover
property from the possession of the
trustee; Houghton v. Burden, 228
U. S. 161; Security Warehousing
Co. v. Hand, C. C. A., 143 Fed. 32;
Smith v. Means, C. C. A., 148 Fed.
89; Re Gold, C. C. A., 210 Fed. 410;
Gibbons v. Goldsmith, C. C. A., 222
Fed. 826; Scandinavian-American
Bank v. Sabin, C. C. A., 227 Fed.
579; Howard D. Thomas Co. v. Be-
harrell, C. C. A., 229 Fed. 691;
American Piano Co. v. Heazel, C.
C. A., 240 Fed. 410; Dalton v.
Humphreys, C. C. A., 242 Fed. 777;
or receiver, Walter Scott & Co. v.
Wilson, C. C. A., 115 Fed. 284; or
the bankrupt before adjudication,
Triumph Electric Co. v. Patterson,
C. C. A., 211 Fed. 244. But see
Re Whitener, C. C. A., 105 Fed.
180; Mound Mines Co. v. Haw-
thorne, C. C. A., 173 Fed. 882;
Nauman Co. v. Bradshaw, C. C. A.,
193 Fed. 350. It has been held that
where the only question in dispute
is the jurisdiction of the court to en-
tertain such a proceeding, this may
be reviewed by a petition to revise.
Gibbons v. Goldsmith, C. C. A., 222
Fed. 826. A final order is appeal-
able when made in proceeding, in-
stituted in the Court of Bankruptcy
by a claimant, to enforce his lien
upon property in the possession of
the trustee or the court, Knapp v.
Milwaukee Tr. Co., 216 U. S. 545;
Dodge v. Norlin, C. C. A., 133 Fed.
363; Re First Nat. Bank, C. C. A.,
135 Fed. 62; Re Doran, C. C. A.,
154 Fed. 467; New Hampshire Sav-
ings Bank v. Varner, C. C. A., 216
Fed. 721; Re Breyer Printing Co.,
C. C. A., 216 Fed. 878; Huttig Sash

by a trustee in bankruptcy in a District Court of the United

& Door Co. v. Stitt, C. C. A., 218 Fed. 1; Feick v. Stephens, C. C. A., 250 Fed. 191; Luck v. Staples, C. C. A., 255 Fed. 637. But see Re Streator Metal Stamping Co., C. C. A., 205 Fed. 280; Whitney Central Tr. & Sav. Bank v. U. S. Const. Co., C. C. A., 250. Fed. 784. So, it has been held, an order establishing the lien of a third party upon property claimed by the bankrupt as exempt, Burow v. Grand Lodge, C. C. A., 133 Fed. 708; and orders directing the payment of claims that are allowed as liens, Bell v. Arledge, C. C. A., 192 Fed. 837; Stuart v. Britton Lumber Co., C. C. A., 227 Fed. 49. It has been said: that a decree or order upon a petition asserting a lien upon a fund in the hands of the trustees is not the subject of a separate appeal, Hutchinson v. Otis, 190 U. S. 552, 47 L. ed. 1179; Euclid Nat. Bank v. Union Trust & Deposit Co., C. C. A., 149 Fed. 975; Re Hawley Down-Draft Furnace Co., C. C. A., 238 Fed. 122; although it might perhaps be reviewed as incident to an appeal from the proof of the debt which the lienor claimed was due him; Hutchinson v. Otis, 190 U. S. 552, 47 L. ed. 1179; Re Loving, 224 U. S. 183; Cunningham v. German Ins. Bank, C. C. A., 101 Fed. 977. It has been said that it is not appealable if the lienor is not a creditor of the bankrupt. Re Columbia Real Estate Co., C. C. A., 112 Fed. 643; Sterne v. Merchants' Nat. Bank, C. C. A., 216 Fed. 862; Bernard v. Lea, C. C. A., 210 Fed. 583.

Contra, Gaudette v. Graham, C. C. A., 164 Fed. 310. Or orders which reject or allow set-offs, Western Tie & Timber Co. v. Brown,

196 U. S. 502, 49 L. ed. 571; supra, § 648; and which determine the liability of petitioning creditors for the costs of a receivership, Re Veler, C. C. A., 249 Fed. 632, are appealable. An appeal is the proper remedy to review an order granting, Mitchell Store Building Co. v. Carroll, 232 U. S. 379, denying, Clark v. Pidcock, C. C. A., 129 Fed. 745; or dissolving, Bothwell v. Fitzgerald, C. C. A., 219 Fed. 408; an injunction prayed by the trustee against the prosecution of an action in another court; except perhaps when the merits are not considered, Re Russell, C. C. A., 101 Fed. 248; Orinoco Iron Co. v. Metzel, C. C. A., 230 Fed. 40; and it has been held an injunction restraining a third person from interfering with the possession by the trustee of property claimed by both parties; Stelling v. G. W. Jones Lumber Co., C. C. A., 116 Fed. 261 (brought in the District Court); Re Rusch, C. C. A., 116 Fed. 270. But see O'Dell v. Boyden, C. C. A., 150 Fed. 731; infra, § 667. It has been held that the following orders are appealable: An order granting or disallowing claims for fees to counsel on behalf of creditors, Ohio Valley Bank Co. v. Switzer, C. C. A., 153 Fed. 362; Re Kinnane Co.'s Estate, C. C. A., 242 Fed. 769; but see Pratt v. Bothe, C. C. A., 130 Fed. 670; or to counsel of the bankrupt. Re Kinnane Co.'s Estate, C. C. A., 242 Fed. 769; or to trustees, Davidson v. Friedman, C. C. A., 140 Fed. 853; approved in Remington on Bankruptcy, § 2907; contra, Gray v. Grand Forks Mercantile Co., C. C. A., 138 Fed. 344, 347; and an order denying an application to re

States to recover money 2 or property, and a judgment adjudging the defendant an involuntary bankrupt after a trial by jury. "Appeals, as in equity cases, may be taken in bankruptcy proceedings from the Courts of Bankruptcy to the Circuit Court of Appeals of the United States, and to the Supreme Court of the Territories, in the following cases, to wit: (1) from a judg ment adjudging or refusing to adjudge the defendant a bankrupt; 5 (2) from a judgment granting or denying a dis

quire a trustee to account to creditors for the rental value of property, of which he permitted the bankrupt to remain in possession; Bank of Clinton v. Kondert, C. C. A., 159 Fed. 703. Orders are appealable which require bankrupts to account for or surrender property which they have fraudulently concealed; Re Raphael, C. C. A., 192 Fed. 874; Jones v. Blair, C. C. A., 242 Fed. 783; but not an order directing the bankrupt to turn over money or property to his trustee when no complicated questions of fact are involved, Henkin v. Fousek, C. C. A., 246 Fed. 285; and an order granting or disallowing the claim of a bankrupt to property in the possession of the referee, which he claims is exempt. Holden v. Stratton, 191 U. S. 115, 24 Sup. Ct. 45. It has been intimated that an order directing the removal of a proceeding in bankruptcy from one district to another can only be reviewed by appeal. Kyle Lumber Co. v. Bush, C. C. A., 133 Fed. 688, 693. Independent plenary suits have also been said to be controversies arising in bankruptcy. Walter Scott & Co. v. Wilson, C. C. A., 115 Fed. 284; Security Warehousing Co. v. Hand, C. C. A., 143 Fed. 32; McCarty v. Coffin, C. C. A., 150 Fed. 307. But see Thomas v. Sugarman, 218 U. S. 129. A peti

tion of revision will not lie to review an order or decree in a plenary suit. Re Jacobs, C. C. A., 99 Fed. 539; Re Rusch, C. C. A., 116 Fed. 70; Doroshow v. Ott, C. C. A., 134 Fed. 740; U. S. v. Ruggles, C. C. A., 221 Fed. 256; Re Vanoscope Co., C. C. A., 253 Fed. 53, an action against the bankrupt begun before the proceedings. Contra, Delta Nat. Bank v. Easterbrook, C. C. A., 133 Fed. 521.

2 Turner v. Schaeffer, C. C. A., 249 Fed. 654.

8 Delta Nat. Bank V. Easterbrook, C. C. A., 133 Fed. 521; Wm. Edwards Co. v. La Dow, C. C. A., 230 Fed. 378. An order dismissing a petition by an intervenor filed before adjudication to obtain machinery in the possession of the bankrupt claimed by a mortgagee of the land should be reviewed by appeal and not by writ of error. Triumph Electric Co. v. Patterson, C. C. A., 211 Fed. 244.

4 Simonson v. Sinsheimer, C. C. A., 100 Fed. 426; Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200; Frederic L. Grant Shoe Co. v. W. M. Laird Co., 203 U. S. 502, 51 L. ed. 292; Duncan v. Landis, C. C. A., 106 Fed. 839; Lennox v. Allen-Lane Co., C. C. A., 167 Fed. 114. But see Lockman v. Lang, C. C. A., 128 Fed. 279. See infra, § 687.

5 Judgments or orders are appeal

6

charge; and (3) from a judgment allowing or rejecting a debt or

able which adjudge or refuse to adjudge the respondent an involuntary bankrupt in cases where there was no jury trial appealable, although only questions of law are involved, C. C. Taft Co. v. Century Sav. Bank, C. C. A., 141 Fed. 369; Cook Inlet Coal Fields Co. v. Caldwell, C. C. A., 147 Fed. 475; which dismiss a petition in bankruptcy for want of jurisdiction. Stevens v. Nave-McCord Mercantile Co., C. C. A., 150 Fed. 71, contra, Re New England Breeders' Club, C. C. A., 169 Fed. 586, which dismiss a petition of intervention, filed by a lienor, who is not a creditor, to contest an adjudication in bankruptcy, Re Columbia Real Estate Co., C. C. A., 112 Fed. 643; Ogden v. Gilt Edge Consol. Min. Co., C. C. A., 225 Fed. 723. It was held that a stipulation submitting a petition in involuntary bankruptcy to the court without a jury, constituted the trial judge an arbitrator, and his decision, when supported by evidence, would not be disturbed by the appellate court. Ft. Worth Heavy Hardware Co. v. Shapleigh Hardware Co., C. C. A., 221 Fed. 257. It has been held that orders are not appealable, but reviewable only by petition, which set aside, Re Jacobs, C. C. A., 241 Fed. 620, Cf. Re Sutter Hotel Co., C. C. A., 241 Fed. 367; or which refuse to set aside an adjudication of bankruptcy, Brady v. Bernard & Kittinger, C. C. A., 170 Fed. 576; Hart-Parr Co. v. Barkley, C. C. A., 231 Fed. 913; Armstrong v. Norris, C. C. A., 247 Fed. 253; Re Vanoscope Co., C. C. A., 253 Fed. 53; or which ad

judge an individual to be a member of a bankrupt partnership, Francis v. McNeal, C. C. A., 170 Fed. 445. These cannot be reviewed by petition so far as controverted questions of fact are concerned. Hunter, Walton & Co. v. J. G. Cherry Co., C. C. A., 247 Fed. 458; infra, § 668.

6 A judgment or order confirming a composition is, in effect, a grant of a discharge. Re Bay State Milling Co., C. C. A., 223 Fed. 778; Re O'Gara, 260 Fed. 742; Re Gottlieb, C. C. A., 262 Fed. 730. See Mulford v. Fourth Street Nat. Bank, C. C. A., 157 Fed. 897. An order refusing to confirm a composition is in effect a denial of a discharge. Re McVoy Hardware Co., C. C. A., 200 Fed. 949. Consequently it has been held that they are appealable; but it has been held that where an order dismissing the petition for the confirmation of a composition was based solely upon matters of law affecting the construction of the statute and did not involve the right of the bankrupt to a discharge it was not appealable, but reviewable by a petition for a revision. Re Graham & Son, C. C. A., 252 Fed. 93. An order dismissing a petition for a discharge is appealable, Re Kuffler, C. C. A., 127 Fed. 125, although the dismissal is for want of prosecution. Re Kuffler, C. C. A., 127 Fed. 125. It has been held that orders are not appealable but subject to review upon petitions for a revision which deny motions to dismiss an application for a discharge. Lindeke v. Converse, C. C. A., 198 Fed. 618. Or dismiss an application for the revo

« ForrigeFortsett »