Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

to these courts in other cases must be taken within six months after the entry of judgment or order sought to be reviewed.23

Upon an appeal, the court of review may review questions of fact, as well as of law.24 A question of discretion will rarely

49. The filing of a petition for a rehearing within the ten days extends the time for an appeal until the disposition of the petition. Re McCall, C. C. A., 145 Fed. 898. When, upon a rehearing, an order is set aside for some substantial reason other than to extend the time to take an appeal, the time to appeal begins to run anew from a subsequent order to the same effect. West v. W, A. McLaughlin & Co.'s Trustee, 162 Fed. 124. Todd V. Alden, C. C. A., 245 Fed. 462. The time to appeal does not begin to run until the order sought to be reviewed is filed in the clerk's office. Peterson V. Nash Bros., C. C. A., 55 L.R.A. 344, 112 Fed. 311; Re McCall, C. C. A., 145 Fed. 898. The time does not begin to run until the order is actually entered, notwithstanding a prior decision in writing. Re Hettling, C. C. A., 175 Fed. 65; although it is entered nunc pro tunc as of an earlier date, Re Stafford, 240 Fed. 155. The appeal is not taken until the order allowing it is filed in the office of the Clerk of the Court of Bankruptcy. Norcross v. Nave & McCord Merc. Co., C. C. A., 101 Fed. 796, infra, § 698. The date recited in the order does not control. First Nat. Bank of Paris, Ky. v. Yerkes, C. C. A., 238 Fed. 278. When the tenth day is a Sunday or a holiday an appeal taken on the day following is in due time. Grafton v. Meikleham, C. C. A., 46 Fed. 737. 23 30 St. at L. 829, § 11; Boonville Nat. Bank v. Blakey, C. C. A., 107 Fed. 891; infra, § 698.

24 Houghton v. Burden, 228 U. S. 161, 57 L. ed.; Courier-Journal Job Printing Co. v. Schaefer-Meyer Brewing Co., C. C. A., 101 Fed. 699; Bernard v. Lea, C. C. A., 210 Fed. 585; Flanders Motor Co. v. Reed, C. C. A., 220 Fed. 642. An appeal may be decided on questions of law alone, without the consideration of any question of fact. C. C. Taft Co. v. Century Sav. Bank, C. C. A., 141 Fed. 369. A finding of fact made by the referee and affirmed by the District Court will usually be affirmed by the court of review; Re Noyes Bros., C. C. A., 127 Fed. 286; Buckingham V. Estes, C. C. A., 128 Fed. 584; Kenova Loan & Trust Co. v. Graham, C. C. A., 135 Fed. 717; Hussey v. Dry Goods Co., 148 Fed. 598, 78 C. C. A. 370, 17 Am. B. R. 511; Thompson v. Mauzy, C. C. A., 174 Fed. 611; Boswell Not. Bank v. Simmons, C. C. A., 190 Fed. 735; Carroll v. Stern, C. C. A., 227 Fed. 723; Re Hopkins, C. C. A., 299 Fed. 378.

Schmid v. Rosenthal, C. C. A., 230 Fed. 818; Walter A. Wood Mowing & Reaping Mach. Co. v. Croll, C. C. A., 231 Fed. 680; Re Kaplan, C. C. A., 234 Fed. 866; Continental Coal Corp. v. Roszelle Bros., C. C. A., 242 Fed. 243; International Tr. Co. v. Myers, C. C. A., 245 Fed. 110; Stephen Putney Shoe Co. v. Dashiell, C. C. A., 246 Fed. 121; Re Nankin, C. C. A., 246 Fed. 811; Re Johnson, 247 Fed. 135; Re Turpin Hotel Co., C. C. A., 248 Fed. 25; Peeples v. Georgia Iron & Coal Co., C. C. A., 248 Fed. 886, affirming Re Georgia

be reviewed,25 especially when it concerns the administration of the bankrupt's estate.26 It has been held: that the District Court has jurisdiction to determine whether a corporation is principally engaged in manufacturing and mercantile pursuits, and for that reason subject to be declared an involuntary bankrupt; and that, consequently, an appeal from a decision thereupon lies to the Circuit Court of Appeals and not to the Supreme Court of the United States.27 Upon an appeal from a final decree or order, the court may review all prior orders in the proceeding, which injuriously affect the appellant; 28 but not

Steel Co., 240 Fed. 473, certiorari denied Peeples v. Georgia Iron & Coal Co., 247 U. S. 519; 38 Sup. Ct. 582. 62 L. ed. 1245; Whitmore v. Swank, C. C. A., 252 Fed. 135; Hagan v. McNeil, C. C. A., 253 Fed. 716; Manson v. Mesirov, C. C. A., 254 Fed. 799, certiorari denied, 249 U. S. 615, 39 Sup. Ct. 389, 63 L. ed. 803; Re Model Incubator Co., C. C. A., 255 Fed. 76; Luck v. Staples, C. C. A., 255 Fed. 637, certiorari denied 249 U. S. 605, 39 Sup. Ct. 288, 63 L. ed. 798; Dotham Nat. Bank v. Jones, C. C. A., 255 Fed. 332; Rosenberg v. Semple, C. C. A., 257 Fed. 72, affirming Re Gottlieb & Co., 245 Fed. 139; Re Lake Chelan Land Co., C. C. A., 257, 497. See La Jolla Lumber & Mill Co., 243 Fed. 1004. But not when the District Judge differed from the special master in his conclusions, Mason v. Wolkowich, C. C. A., 10 L.R.A. (N.S.) 765, 150 Fed. 699. See also Merchants' Nat. Bank of Toledo, Ohio, v. Cole, C. C. A., 149 Fed. 708, nor when there were no findings of fact by either the District Judge or the referee. Burleigh v. Foreman, C. C. A., 130 Fed. 13.

By General Order XXXVI, subd. 3. "In every case in which either party is entitled by

the act to take an appeal to the supreme court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or decree, make and file a finding of the facts, and its conclusions of law thereon,

stated separately; and the record transmitted to the supreme court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the conclusions of law." See Brady v. Bernard & Kittinger, C. C. A., 170 Fed. 576; Washington v. Tearney, C. C. A., 197 Fed. 307; Re Martin, C. C. A., 201 Fed. 31; Lumpkin v. Foley, C. C. A., 204 Fed. 372. These provisions seem now to be obsolete, infra § 669.

25 Streeter v. Lowe, 184 Fed. 263; Bank of Dillon v. Murchison, C. C. A., 213 Fed. 147; Babbitt v. Read, C. C. A., 240 Fed. 694, Infra § 711.

26 Gold v. South Side Tr. Co., C. C. A., 179 Fed. 210; Bank of Dillon v. Murchison, C. C. A., 213 Fed. 147; D. W. Standrod & Co. v. Utah Implement-Vehicle Co., C. C. A., 223 Fed. 517. Infra § 668.

27 Columbia Iron Works v. National Lead Co., C. C. A., 127 Fed. 99.

28 Stevens v. Nave-McCord Mer

those which only injuriously affect the bankrupt or another party who has taken no cross-appeal.29 If the Court of Bankruptcy fails to obey a mandate of the Circuit Court of Appeals, obedience thereto may be enforced by the writ of mandamus.30 petition of revision cannot be sustained as an appeal.31

A

§ 668. Practice upon petition for a revision. The original petition for a revision should be filed in the Circuit Court of Appeals and not in the District Court. Such power of revision must be exercised on due notice and petition by any party aggrieved. It has been held that all the parties injuriously affected need not join therein. The petition must clearly state the questions of law involved, so as to represent a distinct issue, and be accompanied by enough of the record to show the manner in which the questions arose. It is the safer practice to procure

cantile Co., C. C. A., 150 Fed. 71, 73. But see Brady v. Bernard & Kittinger, C. C. A., 170 Fed. 576. It seems that this cannot be done when the prior order was appealable. Bray v. Johnson, C. C. A., 166 Fed. 57.

29 McGahan v. Anderson, C. C. A., 113 Fed. 115.

30 Ex parte Chicago Title & Trust Co., C. C. A., 146 Fed. 742; reversed upon mandamus without affecting the question of jurisdiction in Ex parte First Nat. Bank of Chicago, 207 U. S. 61, 52 L. ed. 103. Re Lesaius, C. C. A., 181 Fed. 690, holding that the District Court could not amend an order that had been reversed. See § 712, infra. A second appeal will be dismissed as frivolous when the court of review on the first appeal has passed upon the points raised by the assignments of error and no new evidence has been submitted. Re Kehler, C. C. A., 162 Fed. 674.

31 Re Mertens, C. C. A., 142 Fed. 445; Kirsner v. Taliaferro, C. C. A., 202 Fed. 51; Re Shidlovsky, C. C. A., 224 Fed. 450; Re Reilly, C.

C. A., 258 Fed. 121. But see Re Endlar, C. C. A., 192 Fed. 762.

§ 668. 1 Re Williams, 105 Fed. 906. Bridgeton Nat. Bank v. Way, C. C. A., 253 Fed. 41.

230 St. at L. 553, § 24. Lazarus Michel & Lazarus v. Harding, C. C. A., 223 Fed. 50. A bankrupt cannot thus obtain a review of an order for the examination of his wife. Re Weidenfeld, C. C. A., 254 Fed. 677.

8 Re Jemison Mercantile Co., C. C. A., 112 Fed. 966.

4 Re Richards, C. C. A., 96 Fed. 935; Courier-Journal Job Pr. Co. v. Schaefer-Meyer Br. Co., C. C. A., 101 Fed. 699; Re Baker, C. C. A., 104 Fed. 287. A petition unaccompanied by a transcript or any finding of fact will be dismissed. Re Throckmorton, C. C. A., 196 Fed. 656. The petition should set out the facts or the findings of facts upon which the matters of law sought to be reviewed arise. Re Taft, C. C. A., 133 Fed. 511; Re Pettingill & Co., C. C. A., 137 Fed. 840; Steiner v. Marshall, C. C. A., 140 Fed. 710. Contra, Re Baker,

the allowance of the petition, as if it were an appeal, ex parte by

C. C. A., 104 Fed. 287; Remington on Bankruptcy, § 2949. It has been held that the petition will be dismissed unless the record contains a statement or finding of facts, or shows that the court did not determine as one of fact the question sought to be reviewed. Re Pettingill & Co., C. C. A., 137 Fed. 840; Landry v. San Antonio Brewing Ass'n, C. C. A., 159 Fed. 700; Hegner v. Am. Trust & Sav. Bank, C. C. A., 187 Fed. 599. See Johansen Bros. Shoe Co. v. Alles, C. C. A., 197 Fed. 274. In the absence of findings and a transcript of the evidence, it may be presumed that the decision was justified by the facts proved. Re Roadarmour, C. C. A., 177 Fed. 379. King Hardware Co. v. J. G. Christopher Co., C. C. A., 222 Fed. 224; Re Wood, C. C. A., 246 Fed. 246; Re Stitt, C. C. A., 252 Fed. 1; Re Anderson, 252 Fed. 272; Gray v. Gudger, 260 Fed. 931. See Re Wood, C. C. A., 248 Fed. 246. Where the facts support the order the petition will be dismissed, although the ground of the decision below was erroneous. Davis v. Crompton, C. C. A., 158 Fed. 735. But see Re Sobol, C. C. A., 242 Fed. 487. The petition must set forth the decision, which it claims is erroneous, Re Richards, C. C. A., 96 Fed. 935; Re Taft, C. C.. A., 133 Fed. 511; Re O'Connell, C. C. A., 137 Fed. 838; and it should be accompanied by a certified copy of so much of the record as will exhibit the manner in which the question arose and its determination. Re Richards, C. C. A., 96 Fed. 935. In the absence of any rule of court upon the subject, the petition was not dismissed because

the transcript was not certified. Meyer Bros. Drug Co. v. Pipkin Drug Co., C. C. A., 136 Fed. 396. It is the better practice to have the petition accompanied by a certified copy of the opinion of the court below. This is required by the rules of some of the Circuit Courts of Appeal, which also, in some cases, regulate the practice upon these petitions. See appendix, infra. It is insufficient to set forth the opinion of the court below. Re Richards, C. C. A., 96 Fed. 935. The order must be recited in the petition or certified to the court of review. Re Richards, C. C. A., 96 Fed. 935. The finding of facts by the referee and the trial court is almost invariably conclusive, Whitney Central Tr. & Sav. Bank v. U. S. Const. Co., C. C. A., 250 Fed. 784. The opinion of the court below cannot be treated as a finding of matter of fact, unless it is made a part of the record. Re Pettingill & Co., C. C. A., 137 Fed. 840; but it may be looked into for the purpose of ascertaining what propositions of law were determined, Re Pettingill & Co., C. C. A., 137 Fed. 840; Samel v. Dodd, C. C. A., 142 Fed. 68. A question not raised, Re Smith, C. C. A., 203 Fed. 369; nor decided below cannot be considered, Re Smith, C. C. A., 203 Fed. 369; Re O'Gara Coal Co., C. C. A., 235 Fed. 883; Jones v. Ford, C. C. A., 254 Fed. 645. A question will not thus be considered in advance of the ruling thereupon below. Kinkead v. J. Bacon & Sons, C. C. A., 230 Fed. 363. After the mandate in regard to the petition has been transmitted to the District Court it is too late for a

a judge of the District Court or of the Circuit Court of Appeals, but, it has been held that such allowance is not necessary. In the absence of a rule of court upon the subject, no bond or citation is required upon a petition for a revision. Reasonable notice of the hearing upon the petition should be given to the respondents.8

The petition for a revision does not usually bring the prior proceedings before the Circuit Court of Appeals; not even, it has been held, the jurisdiction of the court below when the proceedings have been pending there for some time. 10 Questions of fact cannot be thus reviewed; 11 nor questions of discre

person interested to intervene, so as to apply to the Supreme Court for the writ of certiorari, Re Nevada-Utah Mines & Smelters Corporation, C. C. A., 204 Fed. 982. 5 Re Abraham, C. C. A., 93 Fed. 767.

6 Meyer Bros. Drug Co. v. Pipkin Drug Co., C. C. A., 136 Fed. 396.

7 Meyer Bros. Drug Co. v. Pipkin Drug Co., C. C. A., 136 Fed. 396.

8 Re Abraham, C. C. A., 93 Fed. 767.

9 Re Pettingill & Co., C. C. A., 137 Fed. 840.

10 Re New York Tunnel Co., C. C. A., 159 Fed. 688. See Re Bacon, C. C. A., 159 Fed. 424.

11 Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200; Re Rosser, C. C. A., 101 Fed. 562; Courier-Journal Job Pr. Co. v. Schaefer-Meyer 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; Stevens v. Nave-McCord Mercantile Co., C. C. A., 150 Fed. 71; Re Graessler & Reichwald, C. C. A., 154 Fed. 478; Ryan v. Hendricks, C. C. A., 166 Fed. 94; Re Irwin, C. C. A., 174 Fed. 642; Re Stewart, C. C. A., 179 Fed. 222; Re Lee, C. C.

[ocr errors]

A., 182 Fed. 579; Re Frank, C. C. A., 182 Fed. 794; Re Caponigri, C. C. A., 183 Fed. 307; Re Donnelly, C. C. A., 187 Fed. 121; Johansen Bros. Shoe Co. v. Alles, C. C. A., 197 Fed. 274; Good v. Kane, C. C. A., 211 Fed. 956; Hall v. Reynolds, C. C. A., 224 Fed. 103; OlmsteadStevenson Co. v. Miller, C. C. A., 231 Fed. 69; Lott v. Salsbury, C. C. A., 237 Fed. 191; Wm. M. Moore Dry Goods Co. v. Brooks, C. C. A., 240 Fed. 943; Henkin v. Fousek, C. C. A., 246 Fed. 285; Re Pierce, Butler & Pierce Mfg. Co., C. C. A., 246 Fed. 814; Re Fackler, 246 Fed. 864; Hunter, Walter & Co. v. J. G. Cherry Co., C. C. A., 247 Fed. 458; Re Armann, C. C. A., 247 Fed. 954; Frederick v. Silverman, C. C. A., 250 Fed. 75; Re Rosenbaum, C. C. A., 252 Fed. 1; Re Canister Co., C. C. A., 252 Fed. 70; Re Mullings Clothing Co., 252 Fed. 667; King Lumber Co. v. National Bank of Roanoke, Va., C. C. A., 253 Fed. 946; Re A. Bolognesi & Co., C. C. A., 254 Fed. 770; Re De Ran, C. C. A., 260 Fed. 732; see § 667, supra. Although the evidence is not conflicting when different deductions or conclusions therefrom may reasonably be drawn, Re Frank, C. C. A., 182 Fed. 794; Re

« ΠροηγούμενηΣυνέχεια »