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be governed by the rule laid down in paragraph c. The rule, however, laid down in that paragraph would be then in irreconcilable conflict with the provisions of paragraph d, and it would be impossible to construe the statute harmoniously without eliminating some of its provisions.

Despite the plain meaning of the statute as shown by the foregoing considerations, it

The argument is that the words "under the first subdivision of this section" refer to all the provisions of paragraph a, because that paragraph, as a whole, is the first part of the section, separately divided, and although [597]designated by the letter a, it is nevertheless is urged that the following provision conto be considered, as a whole, as subdivision tained in paragraph b of section 3 operates 1. But whether the words "first subdivision to render any and all acts of bankruptcy of this section," if considered intrinsically insufficient, as the basis for proceedings in and apart from the context of the act, would involuntary bankruptcy, unless it be proved be held to refer to paragraph a as an entire- that at the time the petition was filed the alty or only to the first subdivision of that leged bankrupt was insolvent. The provi paragraph, need not be considered. We are sion is as follows: "A petition may be filed concerned only with the meaning of the against a person who is insolvent and who words as used in the law we are interpreting. has committed an act of bankruptcy within Now, the context makes it plain that the four months after the commission of such words relied on were only intended to relate act." Necessarily if this claim is sound, to the first numerical subdivision of para- the burden in all cases would be upon the graph a. Thus, in the last sentence of para- petitioning creditors to allege and prove graph e the matter intended to be referred such insolvency. The contention, however, to by the words "first subdivision of this sec- is clearly rebutted by the terms of paration," used in the prior sentences, is addition- graph c, which provides as to one of the ally designated as follows: "and under said classes of acts of bankruptcy, enumerated subdivision one." etc., language which can- in paragraph a, that the burden should be not possibly be in reason construed as referon the debtor to allege and prove his solring to the whole of paragraph a, but only to vency. So, alsa paragraph d, conforming in subdivision 1 thereof. this respect to the requirements of paragraph a, contemplates an issue as to the second and third classes of acts of bankruptcy, merely with respect to the insolvency of the debtor at the time of_the_commission of the act of bankruptcy. Further, a petition in a proceeding in involuntary bankruptcy is defined in section 1 of the act of 1898, enumeration 20. to mean "a paper filed by creditors alleging the commission of an act of bankruptcy by a debtor therein named."

by the alleged bankrupt the proceedings shall
be dismissed, and under said subdivision one
the burden of proving solvency shall be on
the alleged bankrupt.'

This is besides more abundantly shown by paragraph d, which provides as follows:

"d. Whenever a person against whom a petition has been filed as hereinbefore provid

ed under the second and third subdivisions

of this section takes issue with and denies
the allegations of his insolvency, it shall be
his duty to appear in court on the hearing
with his books, papers. and accounts, and
submit to an examination, and give testi-
mony as to all matters tending to establish
solvency or insolvency, and in case of his
failure to so attend and submit to examina-
tion the burden of proving his solvency shall
rest upon him."

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This manifestly only refers to enumerations 2 and 3 found in paragraph a, which, it will be remembered, make it essential that the acts of bankruptcy recited should have been committed by the debtor while insolvent. Indeed, if the contention advanced were followed, it would render section 3 in many respects meaningless. Thus, if it were to be held that the words "first subdivision of this section," used in paragraph c, referred to the first division of the section -that is, to paragraph a as a whole-it would follow that the words "second and third subdivisions of this section," used in paragraph d, would relate to the second and [598]third divisions of the section-that is, to paragraphs b and c. But there is nothing in these latter paragraphs to which the reference in paragraph d could possibly apply, and therefore, under the construction as serted, paragraph d would have no significance whatever. To adopt the reasoning referred to would compel to a further untenable conclusion. If the reference in paragraph c to the "first subdivision of this section" relates to paragraph a in its entirety, then all the provisions in paragraph a would

*It follows that the mere statement in th [599] statute, by way of recital, that a petition may be filed "against a person who is insolvent and who has committed an act of bankruptcy," was not designed to superadd a further requirement to those contained in paragraph a of section 3, as to what should constitute acts of bankruptcy. This reasoning also answers the argument based on the fact that the rules in bankruptcy promulgated by this court provide in general terms for an allegation of insolvency in the petition and a denial of such allegation in the answer. These rules were but intended to execute the act, and not to add to its provisions by making that which the statute treats in some cases as immaterial a material fact in every case. Therefore, though the rules and forms in bankruptcy provide for an issue as to solvency in cases of involuntary bankruptcy, where by the statute such issue becomes irrelevant, because the particular act relied on, in a given case, conclusively imports a right to the adjudication in bankruptcy if the act be established, the allegation of insolvency in the petition becomes superfluous, or if made need not be traversed.

Our conclusion, then, is that, as a deed of general assignment for the benefit of credi

tors is made by the bankruptcy act alone
sufficient to justify an adjudication in in-
voluntary bankruptcy against the debtor
making such deed, without reference to his
solvency at the time of the filing of the
petition, that the denial of insolvency by
way of defense to a petition based upon the
making of a deed of general assignment, is
not warranted by the bankruptcy law; and,
therefore, that the question certified must
be answered in the negative.
And it is so ordered.

in error filed a motion to dismiss this writ of error; and on the same day the plaintiff in error filed a petition for a writ of certiorari to the circuit court of appeals of the seventh circuit.

IN ERROR to the Cir orthu District N ERROR to the Circuit Court of the of Illinois in an action brought by the Columbus Construction Company against the Crane Company. On motion to dismiss.

Dismissed.

See same case below, 46 U. S. App. 52, 73
Fed. Rep. 984, 20 C. C. A. 233.

Messrs. Charles S. Holt, Russell M. Wing, and Thomas L. Chadbourne, Jr., for defendant in error, in favor of motion to dismiss.

[600]COLUMBUS CONSTRUCTION COMPANY, of the court:

Piff. in Err.,

บ.

CRANE COMPANY.

(See S. C. Reporter's ed. 600-603.) Several separate appeals, or writs of error, not allowed in same case, at same time, to separate courts.

Messrs. J. R. Custer and S. S. Gregory for plaintiff in error, in opposition to motion to dismiss.

On the 25th day of August, 1898, a writ of error to reverse this judgment was sued out by the plaintiff from the circuit court of appeals of the seventh circuit, where the case is now pending.

On the 27th day of September, 1898, the plaintiff also sued out a writ of error from this court. On April 17, 1899, the defendant

*Mr. Justice Shiras delivered the opinion[601]

The act of 1891 (26 Stat. at L. 826) does not
authorize several separate appeals or writs
of error, on the merits, in the same case and
at the same time to two appellate courts;

and therefore the writ of error in this court,
which was taken while the case was pending
in the circuit court of appeals, is dismissed.

We are of the opinion that the act of 1891 (26 Stat. at L. 826), under which these writs of error were sued out, does not contemplate several separate appeals or writs of error, on the merits, in the same case and at the same time to two appellate courts, and that, therefore, the writ in this court, which was taken while the case was pending in the

[No. 462.]

Submitted April 17, 1899. Decided May 22, circuit court of appeals, ought to be dis1899. missed.

This record discloses that there are pending two writs of error to the judgment of the circuit court-one in the United States circuit court of appeals for the seventh circuit, sued out on the 25th day of August, 1898, and one in this court, sued out on the 27th day of September of the same year. It also appears that the jurisdiction of the circuit court is not in question, but the contention is that that court erred in the exercise of its jurisdiction.

Such a question was considered by this 8931 court in McLish v. Roff, 141 U. S. 661 [35:

That was a case of a writ of error from this court to the United States court for the Indian territory, where a suit was pending and undecided, and the object of the writ was to get the opinion of this court on the question whether the lower court had jurisdiction of the suit. This court held that it was not competent for a party denying the jurisdiction of the trial court to bring that question here on a writ of error sued out before final judgment, and the writ was accordingly dismissed.

In the opinion, read by Mr. Justice La

Statement by Mr. Justice Shiras:

In May, 1891, the Columbus Construction Company, a corporation of the state of New Jersey, brought in the circuit court of the United States for the northern district of Illinois an action at law against the Crane Company, a corporation of the state of Illi-mar, it was said: nois. The case was put at issue, and the trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $48,000. This judgment was reversed by the circuit court of appeals upon a writ of error sued out by the defendant. 46 U. S. App. 52. Thereafter the case was again tried and resulted in a verdict and judgment in favor of the defendant, upon a plea of set-off, in the sum of $98,085.94, as of the date of March 2, 1898.

"It is further argued, in support of the contention of the plaintiff in error, that if it should be held that a writ of error would not lie upon a question of jurisdiction until aft er final judgment, such ruling would lead to confusion and absurd consequences; that the question of jurisdiction would be certified to this court, while the case on its merits would be certified to the circuit court of appeals;[602] that the case would be before two separate appellate courts at one and the same time; and that the supreme court might dismiss the suit upon the question of jurisdiction while the circuit court of appeals might properly affirm the judgment of the lower court upon the merits.

"The fallacy which underlies this argument is the assumption that the act of 1891 contemplates several separate appeals in the

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same case, and at the same time to two ap-
pellate courts. No such provision can be
found in the act, either in express terms or
by implication. The true purpose of the act,
as gathered from its context, is that the writ
of error, or the appeal, may be taken only
after final judgment, except in the cases
specified in section 7 of the act.

v.

"When that judgment is rendered, the par- RIO GRANDE IRRIGATION & COLONI
ty against whom it is rendered must elect
ZATION COMPANY, Appt.,
whether he will take his writ of error or ap-
peal to the supreme court upon the question
of jurisdiction alone, or to the circuit court
of appeals upon the whole case; if the lat-
ter, then the circuit court of appeals may, if
it deem proper, certify the question of juris-
diction to this court."

Messrs. Charles S. Holt, Russell M. Wing, and Thomas L. Chadbourne, Jr., for respondent.

The petition for the writ of certiorari is denied.

CHARLES H. GILDERSLEEVE.

(See S. C. Reporter's ed. 603-610.)

Withdrawal of appearance of attorneyhow brought into the record-motion to set aside judgment.

1.

We think the main purpose of the act of 1891, which was to relieve this court of an enormous overburden of cases by creating a new and distinct court of appeals, would be defeated, if a party, after resorting to the circuit court of appeals and while his case was there pending, could be permitted, of his own motion, and without procuring a writ of certiorari, to bring the cause into this court.

The withdrawal of the appearance of an attorney without leave of the court leaves the record in a condition for a valid judgment by default for want of appearance, if there is no claim that the attorney has acted in collusion with the plaintiff, or without authority, or by mistake.

2.

Moreover, it is evident that such a movement
is premature, for the controversy may be de-
cided by the circuit court of appeals in favor
of the plaintiff in error, and thus his resort 3.
to this court be shown to have been unneces-
sary.

A letter of an attorney withdrawing appearance may be brought into the record by bill of exceptions which sets it forth at length, and states that it was filed by the plaintiff in the case.

A motion to set aside a judgment is addressed to the discretion of the trial court, and where the exercise of that discretion has been approved by the supreme court of the territory, this court will not overrule those courts, unless misuse or abuse of discretionary power plainly appears.

[No. 254.]

22, 1899.

Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138 [ante, 108], is referred to as a case in which there was pending at the same time an appeal from a decree of the circuit court to the circuit court of appeals and to this court. An obvious distinction between that case and this Argued April 20, 21, 1899. is that there the appeal was first taken to this court. Accordingly the circuit court of appeals declined either to decide the case on [603]its merits or to dismiss the appeal, while the case was pending on a prior appeal to this court, and continued the cause to await the result of the appeal to the supreme court. 39 U. S. App. 307.

Without, therefore, considering other grounds urged in the brief of the defendant In error on its motion to dismiss, we think a due regard for orderly procedure calls for a dismissal of the writ of error; and it is so ordered.

Decided May

of the

Court of the Territory of New Mexico affirming the judgment of the District Court for Bernalillo County in that Territory denying a motion to vacate a judgment, etc., in an action brought by Charles H. Gildersleeve, plaintiff, against the Rio Grande Irrigation Company, upon a promissory note. Affirmed.

See same case below, 9 N. M., 48 Pac. 309.

Statement by Mr. Justice Shiras:

This was action of assumpsit begun in the COLUMBUS CONSTRUCTION COMPANY, of New Mexico, on the 17th day of July, district court for Bernalillo county, territory Petitioner,

บ.

CRANE COMPANY, Respondent.

1894, by Charles H. Gildersleeve against the
Rio Grande Irrigation Company. The dec-
laration is in the ordinary form, containing
a special count upon a promissory note for
the sum of $50,760, dated June 30, 1890,
bearing interest at the rate of twelve per
cent, and containing also the common counts

(See S. C. Reporter's ed. 603.)
[No. 782.]

O

Submitted April 17, 1899. Decided May in assumpsit. The note sued on was payable
22, 1899.
to P. R. Smith and indorsed by him and de-
fendant in error, and a copy thereof was filed
PETITION for writ of certiorari to with the declaration, and also a copy of a[604]
peals for the Seventh Circuit. Writ of cer-
tiorari denied.

Messrs. J. R. Custer and S. S. Gregory for petitioner.

thorizing the giving of a note. not to P. R. Smith, but to the Second National Bank of New Mexico. Upon this declaration process was issued, service of which was made upon

of the district court was affirmed. The case was then brought to this court by writ of error, and afterwards an appeal was taken, the case thus appearing twice on the docket of this court as Nos. 163 and 254.

J. Francisco Chavez, a director and stock holder of plaintiff in error. Process was returnable on the first Monday of August, 1894, under the provision of the practice act of 1891, and on the 3d day of August, 1894, defendant below entered its appearance by H. L. Pickett, its attorney. On the 15th day of September, 1894, the plaintiff filed in the office of the clerk of the district court a let-ren ter from Mr. H. L. Pickett, addressed to plaintiff's attorneys, in which the writer states that he withdraws the appearance at the request of Colonel P. R. Smith (who is the original payee of the note sued on). Thereupon the clerk of the district court made and filed a certificate of nonappear ance, and on the same day a judgment was entered, based upon the said certificate, which judgment is for the sum of $76,

393.80.

Afterward, and on the 15th day of November, 1894, during the next term of the district court after the judgment had been entered in vacation, the defendant below filed a motion to vacate the judgment for defects and irregularities apparent on the face of the record. This motion was not heard until the 6th of September, 1895, when it was denied by the court; and on the 9th day of September, 1895, defendant below filed a second motion to vacate the judgment for reasons set forth in the accompanying affidavit filed therewith and also filed at the same time its proposed pleas verified by oath. The affidavit with said motion shows, in substance. that the plaintiff below received from defendant below, in the summer of 1889, 50,000 shares of its capital stock and the sum of $1,510,000 in its first-mortgage bonds, for the purpose of purchasing certain property in New Mexico for said company. It further appears from said alldavit that the plaintiff below did purchase a portion of the property in New Mexico and turned back to the company a portion of the bonds and stock in lieu of the property which he did not purchase, and retained the remainder of the bonds and stock as his own [605]property, but induced the company to assist

him in raising the money necessary to make final payment for the Vallecito grant by executing a promissory note for $17,000, the note in the present case having been subsequently given in renewal of the first note. In other words, it is shown that the indebtedness was that of the plaintiff below, and not of the company; that the company never received any money on said note nor any benefit therefrom, but was merely an accommodation maker to assist the plaintiff below in carrying out his contract with the company. At the time of the execution of said note for $47,000 the plaintiff below agreed to deposit as collateral security there to $120,000 of bonds of the company, and it is further shown by said affidavit that the said collateral has never been accounted for in any manner. The district court entered judgment denying the motion.

The defendant company sued out a writ of error to review the case in the supreme court of the territory, where the judgment

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Mr. Frank W. Clancy for appellant. Messrs. J. H. McGowan and H. L. Warfor appellee.

*Mr. Justice Shiras delivered the opinion[605] of the court:

tion & Colonization Company was duly It is conceded that the Rio Grande Irrigaserved with process, and that an appearance was entered on its behalf by H. L. Pickett, in the case is whether the subsequent witha qualified attorney. The essential question drawal of his appearance by the attorney, without leave of the court, left the record in a for want of an appearance could be validly condition in which a judgment by default

entered.

in which it has been held that the appear*Cases are cited by the appellant's counsel [606] cannot be withdrawn without leave of the ance of a defendant, once regularly entered, court. United States v. Curry, 6 How. 111

[12: 365]; Dana v. Adams, 13 Ill. 692.

But an examination of those cases discloses that this is a rule designed for the benefit and protection of the plaintiff. Usually the question has arisen where there had been no service of process on the defendant, and where, therefore, a withdrawal of appearance by the attorney would leave the plaintiff without ability to proceed by de faulting the defendant for want of an appearance. It was said by this court in Creighton v. Kerr, 20 Wall. 13 [22:311]: "The appearance gives rights and benefits in the conduct of a suit to destroy which by a withdrawal would work great injustice to the other parties."

United States v. Curry, supra, was a suit in equity which had passed to a final decree, and the defendant, desiring to appeal, issued a citation to the complainant, which citation was served on the person who had been attorney of record during the trial of the suit. The attorney subsequently by affidavit stated that he was not the attorney of the appellee at the time the citation was served on him; that he had been discharged from all duty as attorney, and had so informed the marshal at the time of the same. The validity of the appeal was therefore attacked on the ground that there had been no proper service of the citation. This court said:

"The citation is undoubtedly good and ac cording to the established practice in courts of chancery. No attorney or solicitor can withdraw his name after he has once entered it on the record without the leave of the court. And while his name continues there the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself. And we presume that no court would permit an attorney who had appeared at the trial, with the sanetion of the party, express or implied, to 174 U. S.

withdraw his name after the case was finally | record, can look into the merits of the case. decided. For if that could be done, it would The only matter for our consideration is [607]be impossible to serve the citation where the whether the supreme court of the territory party resided in a distant country or his erred in affirming the judgment of the trial place of residence unknown, and would in court denying the defendant's motion to vaevery case occasion unnecessary expense and cate the judgment entered in default of an difficulty, unless he lived at the place where appearance. the court was held. And, so far from permitting an attorney to embarrass and impede the administration of justice by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke."

Sloan v. Wittbank, 12 Ind. 444, was a suit on a promissory note, and to which the defendant appeared. He then withdrew his appearance and the case went to trial, and resulted in a judgment in favor of the plaintiff. On error, the supreme court of Indiana held that the withdrawal of appearance carried with it the answer, and the court should then have entered judgment as by default, instead of going to trial, but that this was a mere irregularity which could not injure the defendant, and could not be taken advantage of on appeal.

So it was held by the supreme judicial court of Massachusetts, that it was no ground for reversing a judgment rendered on the default of the defendant, after he had appeared and then withdrawn his appearance, that the date of the writ was a year earlier than the fact. Fay v. Hayden, 7 Gray, 41.

The judgment by default was entered on September 15, 1894, in vacation, and on November 15, 1894, and during the next suc ceeding term, a motion was made on behalf of the defendant company to vacate the judgment. This motion was, on September 5, 1895, denied; and on September 9, 1895, another motion, accompanied with an affidavit of a defense on the merits, was filed, and this motion was likewise denied.

There is a rule prescribed by the supreme court of the territory, in the following terms:

"No motion to set aside any finding or judgment rendered in vacation shall be entertained, unless it shall be filed and a copy thereof served upon the opposite party within ten days after the entry of such finding or judgment."

As no discretionary power was reserved to the trial judge he could not dispense with this rule of court. As was said in Thompson v. Hatch, 3 Pick. 512:

The

"A duly authorized rule of court has the force of law, and is binding upon the court as well as upon parties to an action, and cannot be dispensed with to suit the circumstances of any particular case. courts may rescind or repeal their rules,[609] without doubt; or, in establishing them, may reserve the exercise of discretion for particular cases. But the rule once made without any such qualification must be applied to all cases which come within it, until it is repealed by the authority which made it."

A case, indeed, might arise of collusion between the plaintiff and the attorney of the defendant, but in such case the court, on due and prompt application to it, would no doubt defeat any attempt on the part of the plaintiff to take advantage of a corrupt dereliction of duty on the part of the defendant's attorney. But it is not pretended in the present case that there was any collusion practised between the plaintiff and the However, the supreme court of the terri defendant's attorney, nor that the latter, tory did not consider it necessary to detereither in entering or withdrawing defend-mine whether the trial court could have set ant's appearance, acted without authority or by mistake.

It is, however, strenuously contended that
the record does not show that the defendant
below ever attempted to withdraw its ap-
pearance, and that hence the judgment by
default for want of an appearance had no
basis. By this is meant that the letter of
Pickett, the attorney, cannot be regarded as
part of the record.
[608] *We agree, however, with the supreme court
of the territory, that this letter, which con-
stituted the withdrawal of appearance, was
sufficiently brought into the record by the
defendant's bill of exceptions, in which it is
set forth at length, and wherein it is averred
that said paper, signed by Pickett, was filed
by plaintiff in said cause. The mere fact
that a paper is found among the files in a
cause does not of itself make it a part of the
record. But it may be put into the record
by a bill of exceptions, or something which
is equivalent; so, at least, to enable the su-
preme court of the territory to deal with it
as part of the record. England v. Gebhardt,
112 U. S. 502 [28: 811].

It is not claimed that this court, upon this
174 U. S.
U. S., Bоок 43.
70

aside the judgment on an application filed
after the ten days had expired, if a diligent
effort and a showing of merit had been
made, but held that there was such an ap-
parent lack of diligence in this case that the
trial court properly refused to set the judg
ment aside.

A motion, even if made within the time prescribed by the rule, to set aside a judgment, is addressed to the discretion of the trial court, and where the exercise of that discretion has been approved by the supreme court of the territory, we should not feel disposed to overrule those courts, unless misuse or abuse of discretionary power plainly appeared; and we cannot say that this is such a case.

Even if we could regard this, not as a mere application under the rule to vacate a judgment, but as a proceeding of an equitable character outside of the rule, we should be compelled to reach the same conclusion. In Bronson v. Schulten, 104 U. S. 417 [26: 800], it was said:

"The question relates to the power of the courts and not to the mode of procedure. It is whether there exists in the court the

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