Imágenes de páginas
PDF
EPUB

tion unless there has been a gross abuse of discretion.18 Nor moot questions, a decision of which cannot affect the rights of the petitioner.13 Interlocutory orders will rarely be thus reviewed when their propriety may be considered upon an appeal from the final decree to be subsequently entered.14 It has been said that ordinarily a Circuit Court of Appeals will not entertain a petition to review any order which does not have a certain degree of definiteness and finality.15 The statute prescribes no period of limitation within which a petition for revision must be presented.16 This is done by the rules of some of the Circuit Courts of Appeals.17 In the absence of such a rule it has been held that a petition for revision may and should be filed within the time usually allowed for an appeal to the Circuit Court of Appeals, namely, six months from the date of the filing of the order below.18 It has been held that an appeal erroneously taken may be treated as a petition of review, when only questions of law are involved. 19 The phrase "within their jurisdiction," in 16 Re Chotiner, C. C. A., 218

Bean, C. C. A., 230 Fed. 405. Such was held to be the finding that a creditor did not have reasonable ground to believe that his debtor was insolvent when he obtained security. Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200; Re Rosser, C. C. A., 101 Fed. 562; CourierJournal Job Pr. Co. v. SchaeferMeyer Br. Co., C. C. A., 101 Fed. 699; Re Whitener, C. C. A., 105 Fed. 180; Re Taft, C. C. A., 133 Fed. 511; Samel v. Dodd, C. C. A., 142 Fed. 68; Re Cole, C. C. A., 144 Fed. 392; Re Graessler & Reichwald, C. C. A., 154 Fed. 478; Re Eggert, C. C. A., 102 Fed. 735. But if the finding of the District Court is so wholly unjustified upon the proofs, as would require a court of review upon a writ of error to set aside a verdict of a jury want of any evidence to sustain it, or for any other reason kindred thereto, the Circuit Court of Appeals will review it. Re Cole, C. C. A., 144 Fed. 392, 393. For cases where a dispute concerning the validity of a chattel mortgage and the denial of a motion to dismiss an application for a discharge were held to present questions of law upon undisputed facts reviewable by petition for revision, see Re Flatland, C. C. A., 196 Fed. 310; Lindeke v. Converse, C. C. A., 198 Fed. 618.

12 Re Goldman, C. C. A., 129 Fed. 212; Mulford v. Fourth Street Nat. Bank, C. C. A., 157 Fed. 897; Re

Fischer, C. C. A., 175 Fed. 531; Re Schulman, C. C. A., 177 Fed. 191; Lindeke v. Converse, C. C. A., 198 Fed. 618; Re Gunacevi Tunnel Co., C. C. A., 201 Fed. 316; Jacobsohn v. Larkey, C. C. A., 245 Fed. 538; Sauve v. M. L. Moore I. M. Co., C. C. A., 248 Fed. 642; Re Horowitz, C. C. A., 250 Fed. 106; Re Graff, C. C. A., 250 Fed. 997; Re Schilling, 251 Fed. 966; Re Weidenfield, C. C. A., 254 Fed. 677; Re Margolies, C. C. A., 266 Fed. 203; Birch v. Steele, C. C. A., 165 Fed. 577, the appointment or removal of a referee in bankruptcy; Re Throckmorton, C. C. A., 196 Fed. 656, the confirmation of a sale; Re Merritt Const. Co., C. C. A., 219 Fed. 555; the approval of the selection by the creditors of a trustee; Sabin v. Blake-McFall Co., C. C. A., 223 Fed. 501. It has been held that the amount of counsel fees is such a question of discretion, Re Grant, C. C. A., 238 Fed. 132. But see Re Smith, C. C. A., 203 Fed. 369; Re Wood, C. C. A., 246 Fed. 246, supra, $ 422, 424.

13 Allen v. Sweeney, C. C. A., 238 Fed. 563; Ward v. Central Trust Co., C. C. A., 252 Fed. 172. But see Lawhead v. Monroe Bldg. Co., C. C. A., 252 Fed. 758; certiorari denied; Monroe Bldg. Co. v. Lawhead, 248 U. S. 581, 39 Sup. Ct. 67, 63 L. ed. 431. See infra § 705.

14 Re Horowitz, C. C. A., 250 Fed. 106, supra, 8 666.

Fed.

Co. v. Pipkin Drug Co., C. C. A., 813.

136 Fed. 396. See Blanchard v. 16 See Bacon v. Roberts, C. C. A., Ammons, C. C. A., 183 Fed. 556. 146 Fed. 729; Re Kinnane Co.'s Laches

may be a ground for reestate, C. C. A., 242 Fed. 769. fusing costs, although the petition

17 In the Second Circuit, the peti- is filed before the six months have tions must be filed and served with- expired. Re Endlar, C. C. A., 192 in ten days, the transcript filed, Fed. 762. An order directing that and the cause docketed within thirty the petitioner be imprisoned unless days thereafter, unless the time is he files an account before a certain enlarged by an order of the court. date will not be set aside upon a The order of enlargement must be petition filed before that day, when filed before the expiration of the there appears to be no error in ditime. C. C. A., Rule 38, 2d Ct., recting the filing of the account. 150 Fed. LIV, 79 C. C. A., LIV; O'Conor v. Sunseri, C. C. A., 184 Re Tanenhaus, C. C. A., 211 Fed. Fed. 712. Cf. Gaudette v. Grabam, 970; Re Vanoscope Co., 233 Fed. C. C. A., 164 Fed. 311. 53; Re Armann, C. C. A., 247 Fed. 19 Re Abraham, C. C. A., 93 Fed. 483; Re Armann, C. C. A., 247 Fed. 767 (where all the parties appear954. An extension of time by stipu- ed); Chesapeake Shoe Co. v. Seldlation is insufficient. Re Brown, C. ner, C. C. A., 122 Fed. 593; Re C. A., 174 Fed. 339. An order of Williams' Estate, C. C. A., 156 Fed. enlargement nunc pro tuno cannot 934; Graham v. Faith, C. C. A., be made except under extraordin- 253 Fed. 32. See Bryan v. Bern. ary circumstances. Ibid. See Re heimer, 181 U. S. 188, 192, 193, 45 Strobel, C. C. A., 160 Fed. 916. L. ed. 814, 815, 818; Holden v. The time is not extended by a Stratton, 191 U. S. 115, 119, 48 motion to resettle the order, Re L. ed. 116, 118. Contra, Dickas v. John M. Linck Const. Co., C. C. A., Barnes, C. C. A., 140 Fed. 849; 225 Fed. 488. See supra 8$ 255, Gaudette v. Graham, C. C. A., 164 667. Infra, 8 698.

Fed. 311; Re Reilley, C. C. A., 258 18 Re Holmes, C. C. A., 142 Fed: Fed. 121. See supra, § 259. For an 391; Re Youngstrom, C. C. A., 153 estoppel to object to this mode of Fed. 98. See Meyer Bros. Drug review, see Re Endlar, C. C. A., 192

the grant of supervisory power to the Circuit Courts of Appeals, means within their territorial jurisdiction; and they may, upon a petition for a review, revise an order of a District Court in bankruptcy when an objection to the jurisdiction was made below, if that was not the only objection, and the court did not ground its decision upon a want of jurisdiction.20 It has been said that they cannot thus pass upon a constitutional question raised by a petition for a revision 21

$ 669. Review by the Supreme Court of the United States. By the Act of February 28, 1915, “judgments and decrees of the circuit courts of appeals in all proceedings and causes arising under 'An Act to establish a uniform system of bankruptcy throughout the United States,' approved July first, eighteen hundred and ninety-eight, and in all controversies arising in such proceedings and causes:

shall be final, save only that it shall be competent for the Supreme Court to require by certiorari upon the petition of any party thereto, that the proceeding, case, or controversy be certified to it for review and determination, with the same power and authority and with like effect as if taken to that court by appeal or writ of error.

[ocr errors]
[ocr errors]

Fed. 762; Huttig Sash & Door Co. v. Stitt, C. C. A., 218 Fed. 1. But see supra, &$ 666, 667. A stipulation that two petitions for a revision with the transcripts upon the same be printed in one appeal book, does not waive any legal objections to either of them. Re Strobel, C. C. A., 160 Fed. 916.

20 Bryan v. Bernheimer, 181 U. S. 188, 45 L. ed. 814; Re Seebold, C. C. A., 105 Fed. 910.

21 Re Abbey Press, C. C. A., 134 Fed. 51.

$ 669. 1Act of Jan. 28, 1915, ch. 22. $4, 38 St. at L. 804 amended, Sept. 6, 1916, ch. 448, § 3, 39 St. at L. 727, Comp. St. $ 1120a. By the Bankruptcy Law which was enacted prior to this statute, the Supreme Court of the United States was “invested with appellate jurisdiction of controversies arising in

bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases.

The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia." 30 St. at L. 544, 553, 554, $ 24. See Leg. gett v. Allen, 110 U. S. 741, 28 L. ed. 313; Ingersoll v. Bonroe, 154 U. S. 645, 38 L. ed. 1091; Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009; James v. Stone & Co., 227 U. S. 410; Friend v. Talcott, 228 U. S. 27; Houghton v. Burden, 228 U. S. 161; Lazarus v. Prentice, 234 U. S. 263. But see Swift & Co. v. Hoover, 242 U. S. 107, 109. The Bankruptcy Act further provided :

From any final decision

It seems that this statute applies to all plenary suits brought in the Federal courts by trustees and receivers in bankruptcy. It applies to controversies in proceedings in bankruptcy in which the Circuit Courts of Appeals have overruled the contention that a State statute was repugnant to the Federal Constitution. The practice upon applications for such a writ of certiorari is hereinafter described. The Supreme Court may review by writ of error a final decree in a suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of the Bankruptcy Act or of an authority exercised under the United States under color of such act and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of this being repugnant to the Bankruptcy Act and the decision is in favor of the validity. The

а

of a Court of Appeals, allowing or rejecting a claim under this act, an appeal may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States, in the following cases and no other: 1. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or, 2. Where some justice of the Supreme Court of the United States shall certify that in his opinion the determination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this act throughout the United States." 30 St. at L. 544, 554, $ 25. See Conboy v. First Nat. Bank, 203 U. S. 141, 51 L. ed. 128; Lumpkin v. Foley, C. C. A., 204 Fed. 372. An order denying a claim of set off was reviewed after its affirmance by a Circuit Court of

Fed. Prac. Vol. III-88

Appeals, Western Tie & Timber Co. v. Brown, 196 U, S. 502, 49 L. ed. 571. There was no appeal from an order by the District Court of the United States for Porto Rico rejecting claim in bankruptcy. Tefft, Weller & Co. v. Munsuri, 222 U. S. 114, 56 L. ed. 118. Nor from a decision upon a petition for the revision of a decree or order of a District Court, which did not allow or reject a claim, Holden v. Stratton, 191 U. S. 115, 48 L. ed. 116; Mitchell Store Building Co. v. Carroll, 232 U, S. 379.

2 William R. Staats Co. v. Security Tr. & Sav. Bank, 243 U, S. 121; but see Spencer v. Duplan Silk Co., 191 U. S. 526, 48 L. ed. 287; Re Jacobs, C. C. A., 99 Fed. 539.

3 Central Trust Co. v. Lueders, 239 U. S. 11.

4 Infra § 689.

5 Act of Sept. 6, 1916, ch. 448, $ 2, amending, Jud. Code $ 237, and Act of Dec. 23, 1914, ch. 2, 38 St. at L. 790, Comp. St. 8 1214, see infra 88 689, 692,

Supreme Court may, by certiorari or otherwise, require that there be certified to it, for review and determination with the same power and authority and with like effect as if brought up by writ of error, any cause wherein a final judgment or decree has been rendered by the highest court of a State in which a decision could be had; where is drawn in question the validity of such law or of any amendment thereof, or of an authority exercised under the United States under color thereof, and the decision is in favor of the validity; or where is drawn in question the validity of a statute of or an authority exercised under any State on the ground of repugnancy to the Bankruptcy Act and the decision is against the validity, or where any title, right, privilege, or immunity is claimed under the Bankruptcy Act or under any amendment thereof, or any commission held, or authority exercised under the United States and under color of such Act and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed by either party under the Bankruptcy Act or under such commission or authority..

6 Act of Sept. 6, 1916, ch. 448, $ 2 amending Jud. Code $ 237, and Act of Dec. 23, 1914, ch. 2, 38 St. at L. 790, Comp. St. $ 1214, see infra, $$ 689, 692. Hutchinson v. Otis, 190 U. S. 552, 47 L. ed. 1179, 1181; Central Trust Co. v. Chicago Auditorium, 240 U. S. 581. The Supreme Court may review the decision of such a State court which refuses to give proper effect to a discharge in bankruptcy. Dimock v. Revere Copper Co., 117 U. S. 559, 29 L. ed. 994; Forsyth v. Vehmyer, 177 U. S. 177, 44 L. ed. 723; Pal

v. Hussey, 119 U. S. 96, 30 L. ed. 362; Lesser v. Gray, 236 U. S. 70. See Winchester v. Heiskell, 119 U. S. 450, 30 L. ed. 462. And also it has been held one entered in an action by a trustee to recover assets of the estate, Rector v. City Deposit Bank Co., 200 U. S. 405, 50 L. ed. 527; Eau

Claire Nat. Bank v. Jackman, 204 U. S. 522, 51 L. ed. 596; Miller v. N. 0. Acid & P. Co., 211 U. S. 496; but not a judgment of a State court that an order setting aside to a bankrupt certain land as exempt is res ad judicata in an action of ejectment by parties who have bought this at an execution sale, made subsequent to the filing of a petition of voluntary bankruptcy. Smalley v. Laugenour, 196 U. S. 93, 49 L. ed. 400. Under former bankruptcy laws it was held that the Supreme Court might review said judgments or decrees of a State court which refused to give proper effect to the statute of limitations as to suits against trustees. Traer v. Clews, 115 U. S. 528, 29 L. ed. 467; or to a sale in bank. ruptcy. Factors' & Tr. Ins. Co. v. Murphy, 111 U. S. 738, 28 L. ed. 582; New Orleans S. F. & J. Co.

mer

« AnteriorContinuar »