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claim 7 of five hundred dollars

or over.'

"9 Otherwise the right

But see

cause

of

cation of a discharge, Thompson v. Mauzy, C. C. A., 174 Fed. 611; Re White, C. C. A., 248 Fed. 115.

7 Postlethwaite v. Hicks, C. C. A., 165 Fed. 897; Re Irwin, C. C. A., 174 Fed. 642; Re Mueller, C. C. A., 135 Fed. 711; Adams y. Deckers Valley Lumber Co., C. C. A., 202 Fed. 48; Re Lane Lumber Co., C. C. A., 217 Fed. 546; Southern Cotton Oil Co. v. Elliotte, C. C. A., 218 Fed. 567; King Lumber Co. v. National Exch. Bank, C. C. A.,

253 Fed. 946; Re Craig Lumber Co., C. C. A., 266 Fed. 692, Vindel v. Holgate, C. C. A., 221 Fed. 342. An order upon a petition for the reconsideration of a claim previously allowed is appealable. Kiskadden v. Steinle, C. C. A., 203 Fed. 375. It has been said: that the words “debt or claim," an order or judgment allowing which is appealable, refer only to claims that

presented for proof against estates in bankruptcy. Holden v. Stratton, 191 U. S. 115, 118, 48 L. ed. 116, 118. Where the debt or claim affected was of the value of $500 or more it was held that orders were appealable; which allowed or denied priority to claims upon applications in which the validity of the claims themselves were in dispute, Re Cosmopolitan Power Co., C. C. A., 137 Fed. 858; Re Creech Bros. Lumber Co., C. C. A., 240 Fed. 8; even when the debt was admitted and the only dispute

over the right to a priority; Cunningham v. German Ins. Bank, C. C. A., 103 Fed. 932, 935; Re Roche, C. C. A., 101 Fed. 956; Re Soudan Mfg. Co., C. C. A., 113 Fed. 804; Re Doran, C. C. A., 154 Fed. 467; see Ritchie County Bank v.

McFarland, C. C. A., 183 Fed. 715. Re Chandler, C. C. A., 184 Fed. 887; Wuerpelv. Commercial Germania Tr. & Sav. Bank, C. C. A., 238 Fed. 269, certiorari denied, Coleman & Co. v. Tawas Co., 250 U. S. 668, 40 Sup. Ct. 14, 63 L. ed. 1198. Re Leterman, Becher & Co., C. C. A., 260 Fed. 543, contra, Re Rouse, Hazard & Co., C. C. A., 91 Fed. 96; Re Worcester County, C. C. A., 102 Fed. 808, 814; Gaudette v. Graham, 164 Fed. 311; and orders which disallowed claims be

a failure to surrender preferences, Livingstone v. Heineman, C. C. A., 120 Fed. 786; Dickson v. Wyman, C. C. A., 111 Fed. 726, Re First Nat. Bank of Louisville, C. C. A., 155 Fed. 100; Cooper v. Miller, C. C. A., 203 Fed. 383.

8 See Re Irwin, C. C. A., 174 Fed. 642. The pecuniary limit, namely five hundred dollars, to the debts or claims, judgments allowing or rejecting which are appealable, has reference to the amount that is allowed or rejected; and where claim, which exceeds five hundred dollars, is allowed in part and in part rejected, neither the allowance or the rejection reaching the prescribed amount, there can be no appeal. Gray v. Grand Forks Mercantile Co., C. C. A., 138 Fed. 344. Cf. Re Cosmopolitan Power Co., C. C. A., 137 Fed. 858; Union Nat. Bank v. Neill, C. C. A., 149 Fed. 720. An appeal was entertained from an order allowing a claim for more than the jurisdictional amount and sustaining separate liens each of which was less than this although the only controversy was as to the validity of the liens.

Stuart v.

are

a

was

of appeal in bankruptcy proceedings is not affected by the amount in controversy.10 A question of fact can be reviewed only by appeal and not by petition to revise.11 “The several Circuit Courts of Appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior Courts of Bankruptcy within their jurisdiction." 12

Orders and decrees in bankruptcy proceedings, which are not appealable, can be reviewed only by a petition of review addressed to the Circuit Court of Appeals.13 Where an interlocu

Britton Lumber Co., C. C. A., 227 Fed. 49. It has been held that an order allowing a fee to an attorney, although less than $500, Re Irwin, C. C. A., 174 Fed. 642, cannot be reviewed by a petition for revision.

9 30 St. at L, 553, $ 25; Ogden v. Gilt Edge Consol. Mines Co., C. C. A., 225 Fed. 723.

10 Emerson v. Castor, C. C. A., 236 Fed. 29.

11 Henderson v. Morse, C. C. A., 235 Fed. 518. See infra $ 668.

12 Ibid., $ 24. For appeals to the Court of Appeals of the District of Columbia, see D. C. Code $ 226,

supra, $ 69.

erty or a fund, to deliver or pay the same to the trustee, or the bankrupt to sign a paper, such as the endorsement of a license, Fisher v. Cushman, C. C. A., 103 Fed. 860; including an order which directs the commitment of the parties against whom it is directed until he has obeyed; Kirsner v. Taliaferro, C. C. A., 202 Fed. 57. An order direct. ing members of a bankrupt partnership to schedule and surrender their individual property; Dickas v. Barnes, C. C. A., 140 Fed. 849. An order granting or denying a claim of exemptions; Holden v. Stratton, 191 U. S. 115, 48 L. ed. 116; Re Youngstrom, C. C. A., 153 Fed. 98. An order reopening or refusing to reopen estate that has been closed: Re O'Connell, C. C. A., 137 Fed. 838; Re Graff, C. C. A., 150 Fed. 997. An order upon the application of a widow for her right to dower in the estate of a bankrupt, who died after the adjudication; Re McKenzie, C. C. A., 142 Fed. 383. An order selling the bankrupt's land free of the wife's right of dower, Kelly v. Minor, C. C. A., 252 Fed. 115. An order upon the application of a trustee authorizing the sale of real estate and the bringing in of third persons assert. ing liens upon the same; Re McMa

13 It has been held that the following orders may be revised by a petition of review: a summary order requiring an adverse party, First Nat. Bank v. Chicago Title & Trust Co., 198 U. S. 280, 49 L. ed. 105; Courtney v. Shea, C. C. A., 225 Fed. 358; a State receiver, Hecox v. Rollestone, C. C. A., 164 Fed. 823; State of Missouri Angle, C. C. A., 236 Fed. 644, contra, Hinds v. Moore, C. C. A., 134 Fed. 221; or the bankrupt, Fisher v. Cushman, C. C. A., 103 Fed. 860; Re Mertens, C. C. A., 142 Fed. 445; Re Shidlovsky, C. C. A., 224 Fed. 450; Henkin v. Fousek, C. C. A., 246 Fed. 285; in possession of prop

an

V.

an

tory decision may be reviewed by an appeal from the final decree, a petition to revise it will rarely be granted.14 The grant of hon, C. C. A., 147 Fed. 68. An supra, $ 638. It has been held that order directing the distribution of commitments in contempt proceedthe proceeds of a sale by the trus- ings may be reviewed by petitions tee and determining priority of dif- for revision. Re Cole, C. C. A., ferent claims therefrom, Morgan v. 144 Fed. 392; S. C., C. C. A., 20 First Nat. Bank of Mannington, Ct., 163 Fed. 180, 183; Re GoodC. C. A., 145 Fed. 466. Contra, rich, C. C. A., 2d Ct., 184 Fed. 5, Cunningham v. German Ins. Bank, 7; Kirsner v. Taliaferro, C. C. A., C. C. A., 103 Fed. 932, 935.

An

4th Ct., 202 Fed. 51; Horton v. order requiring a bidder at a sale Mendelsohn, C. C. A., 249 Fed. 185; in bankruptcy to pay the balance Henkin v. Fousek, C. C. A., 8th Ct., of the purchase price, Re Reilly, C. 267 Fed. 557. Contra, Morehouse v. C. A., 258 Fed. 121. An order fix- Pacific Hardware & Steel Co., °C. ing the compensation of the referee, C. A., 9th Ct., 177 Fed. 337, 339. Kinkead v. J. Bacon & Sons, C. C. But when part of the punishment is A., 230 Fed. 362. An order in an a fine payable to the United States omnibus proceeding brought to de- a writ of error is the proper remtermine conflicting rights of recla- edy. Brown v. Detroit Tr. Co., C. mation. Re Pierson, C. C. A., 233 C. A., 9th Ct. 193 Fed. 622. Supra, Fed. 519. An order denying a peti

8 438.

Where order directed tion by a trustee to recover divi- that a trustee be committed to jail dends, where the facts are not in unless he filed an account on or bedispute. Nelson v. Heckscher, C. C. fore a certain date a petition for A., 219 Fed. 682. An order in a revision filed prior to such day was proceeding to determine whether dismissed' as premature.

O'Conor upon the uncontradicted facts a V. Sunseri, C. C. A., 184 Fed. 712. previous order confirming the ac- Upon a petition to revise an order counts of a trustee was authorized. confirming a sale of land in which Re Kuhn Bros., C. C. A., 234 Fed. the bankrupt claimed a homestead, 277. An order refusing leave to the court reviewed the allowance of intervene to contest an adjudication a claim the liability upon which of bankruptcy, Ogden v. Gilt Edge affected the decision. Pindel Consol. Min. Co., C. C. A., 225 Fed. Holgate, C. C. A., 221 Fed. 342. 723. An order authorizing the The Circuit Court of Appeal for the trustee to borrow money and to com- Ninth Circuit refused to entertain plete a contract made by the bank- a petition to revise an order in an rupt, Re John W. Farley & Co., C. application under the Bankruptcy C. A., 227 Fed. 378. An order Act of 1867. Cresta v. Maxwell, directing the distribution of the C. C. A., 231 Fed. 448. money thus earned. Ibid. An order 14 Re Chotiner, C. C. A., 218 Fed. directing the vacation of a decree 813; Re Horowitz, C. C. A., 250 made by the referee upon a bill of Fed. 106. It has been held that an equity which had not been referred order referring to a master the is. to him. Weidhorn v. Levy, 253 U. S. sues upon a petition should be re268, 40 Sup. Ct. 534, 64 L. ed. --, viewed by a petition to revise. Re

Fed. Prac. Vol. III-87 .

V.

jurisdiction over appeals and petitions of review are mutually exclusive, and a case which is appealable is not reviewable by petition.15 It has been held that, in the absence of objection, the Circuit Court of Appeals might take jurisdiction by petition of a case that was appealable.16 Where the proper remedy is a doubtful question, it seems to be the proper practice for the party aggrieved to file a petition and at the same time take an appeal.17

§ 667. Practice on appeals in bankruptcy. “Appeals from a Court of Bankruptcy to a Circuit Court of Appeals, or to the Supreme Court of a Territory, shall be allowed by a judge of the court appealed from or the court appealed to, and shall be regulated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States.” 1

Hollingsworth & Whitney Co., C. C.
A., 242 Fed. 753.

16 Matter of Loving, 224 U. S. 183, 56 L. ed. 725; Re Mueller, C. C. A., 135 Fed. 711; Re Good, C. C. A., 99 Fed. 389; Re Worcester County, C. C. A., 102 Fed. 808, 811; First Nat. Bank v. State Nat. Bank, C. C. A., 131 Fed. 430, 433; Re Friend, C. C. A., 134 Fed. 778, 781; Re Mueller, C. C. A., 135 Fed. 711; Dickas v. Barnes, C. C. A., 140 Fed. 849; Courtney V. Shea, C. C. A., 225 Fed. 358; Chavelle v. Washington Trust Co., C. C. A., 226 Fed. 400. See Re Eggert, C. C. A., 102 Fed. 735; Re Dickson, C. C. A., 111 Fed. 726; Union Nat. Bank v. Neill, C. C. A., 149 Fed. 720. Contra, Dodge v. Norlin, C. C. A., 133 Fed. 363; Re McKenzie, C. C. A., 142 Fed. 383; Re Holmes, C. C. A., 142 Fed. 391; Stevens v. Nave-McCord Mercantile Co., C. C. A., 150 Fed. 71; Re Lee, C. C. A., 182 Fed. 579, 581.

16 Re Endlar, C. C. A., 1st Ct., 192 Fed. 762. See Lawhead v. Monroe Bldg. Co., C. C. A., 6th Ct., 252 Fed. 758. Contra, Re Mertens, C. C. A., 2nd Ct., 142 Fed. 445; Kirs

ner v. Taliaferro, C. C. A., 2nd Ct., 202 Fed. 51; Re Shidlovsky, C. C. A., 2nd Ct., 224 Fed. 450.

17 Re Worcester County, C. C. A., 102 Fed. 808. See Re Lee, C. C. A., 182 Fed. 579, 581; Re Creech Bros. Lumber Co., C. C. A., 240 Fed. 8.

$ 667. 1 General Order XXXVI. Citizens' Trust Co. v. Mullinix, C. C. A., 235 Fed. 875; Re O'Gara Coal Co., C. C. A., 235 Fed. 883; Re Blum, C. C. A., 244 Fed. 412.

2 30 St. at L. 544, 554, $ 52. This does not relieve the trustee from filing a bond if he desires a supersedeas, Pacific Coast Casualty Co. v. Harvey, C. C. A., 250 Fed. 952. Contra, Re Dresser, 14 Am. B. R. 41, by Referee Dexter. See infra, $ 703. A bond upon an appeal from

adjudication of involuntary bankruptcy is sufficient, although it runs to the original petitioners alone and other creditors joined in the petition before the adjudication. Flickinger v. First Nat. Bank of Vandalia, Ill., C. C. A., 145 Fed. 162. An application for a stay pending an appeal cannot be allowed by a circuit judge. Re Iron

an

In controversies in bankruptcy proceedings, no appeal will lie,

a

clad Mfg. Co., C. C. A., 190 Fed. 320. Pending an appeal from a dismissal of the petition in voluntary bankruptcy, the District Court refused to discharge receiver previously appointed and also refused to direct that he pay for the support of the alleged bankrupt in a sanitarium, when it appeared that the latter's wife held property which her husband had transferred to her. Re Ward, 194 Fed. 179. It has been held: that the failure to procure a citation and to file a bond are not jurisdictional requirements; and that leave to file these after the expiration of the statutory time may be granted, Columbia Iron Works V. National Lead Co., C. C. A., 64 L.R.A. 645, 127 Fed. 99; Lockman v. Lang, C. C. A., 132 Fed. 1; but see Norcross v. Nave & MeCord Merc. Co., C. C. A., 101 Fed. 796; or defects therein may be cured by amendment after the time limited for an appeal; Re T. E. Hill Co., C. C. A., 148 Fed. 832; Hill v. Western El. Co., C. C. A., 214 Fed. 243, 245 citing Foster's Fed. Pr., 3rd ed., 88 160, 161; cf. infra, $$ 699-702; provided that the appeal has been otherwise duly taken within the statutory period; but that the omis. sion of a citation cannot be cured, nor new parties who do not voluntarily appear, Hill v. Western EI. Co., C. C. A., 214 Fed. 243, 245, brought in after the expiration of the first term, at which the appeal

be heard. Gray v. Grand Forks Mercantile Co., C. C. A., 138 Fed. 344. See Nazima Trading Co. v. Martin, C. C. A., 164 Fed. 838. An assignment of errors must be filed or there may be an affirm

ance, without a consideration of the merits of the appeal. Lloyd v. Chapman, C. C. A., 93' Fed. 599; Re Dunning, C. C. A., 94 Fed. 709. See Gardner v. Gleason, C. C. A., 259 Fed. 755; infra, $ 701. An appeal will ordinarily be dismissed when the record does not show that the questions of law presented by the assignments of error were not presented to and ruled upon by the court below, Fidelity Tr. Co. v. Robinson, C. C. A., 192 Fed. 562; and, if not dismissed, such questions will not usually be considered by the appellate court. Arctic Ice Mach. Co. v. Armstrong County Tr. Co., C. C. A., 192 Fed. 114, Re Charles Knosher & Co., C. C. A., 197 Fed. 136; Shaffer v. Koblegard Co., C. C. A., 183 Fed. 71; $ 711, infra. Re Boston Dry Goods Co., C. C. A., 125 Fed. 226; Re Shoe & Leather Reporter, C. C. A., 129 Fed. 588; Re O'Connell, C. C. A., 137 Fed. 838; Carey v. Donohue, C. C. A., 209 Fed. 328; Re Brantman, C. C. A., 244 Fed. 101; Moody-Hormann-Boelhauwe Clinton Wire Cloth Co., C. C. A., 246 Fed. 653; Household Supply Co. v. Whiteaker, C. C. A., 236 Fed. 730. See Osborne v. Perkins, C. C. A., 112 Fed. 127; Re Koenig, 127 Fed. 891; Buckingham v. Estes, C. C. A., 128 Fed. 584; infra, & 711. Even jurisdictional questions that might be waived will not, in such a case, be considered. Boonville Nat. Bank v. Blakey, C. C. A., 107 Fed. 891. But see Re Gottlieb & Co., 245 Fed. 139. Jurisdictional questions which cannot be waived will be considered, even if they were not raised below, C. C. Taft Co. v. Century Sav. Bank, C. C. A., 141 Fed. 369; Re

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