In re Ives

• Decision Date: 10 February 1902
• Docket Number: 1,006.
• Citation: 113 F. 911
• Parties: In re IVES.
• Court: U.S. Court of Appeals — Sixth Circuit

113 F. 911

In re IVES.

No. 1,006.

United States Court of Appeals, Sixth Circuit.

February 10, 1902

H. E Spalding, for petitioners.

Thomas A. E. Weadock, for trustee in bankruptcy.

In the matter of the petition of Adolph Feldheim and Leo M. Butzel to review an order of the district court. 111 F. 495.

On September 11, 1900, a voluntary petition in bankruptcy was filed in the district court of the United States for the Eastern district of Michigan on behalf of the firm of A. Ives & Sons, which firm was composed of Albert Ives, Sr., Albert Ives, Jr., and Butler Ives. This petition was signed by Albert Ives, Jr., and Butler Ives, and by Albert Ives, Sr. by Mrs. Mary Ives Cowlan, his daughter, by authority of a power of attorney dated September 10, 1900, giving her general power to sign and execute all papers and particularly the petition in bankruptcy which was filed. This petition asked that the firm and the individual members thereof be adjudicated bankrupts, and they were so adjudicated. One Henry A. Harman was appointed trustee, and on the 27th of October, 1900, he filed a bill in the circuit court for the county of Wayne, Mich., in chancery, setting forth the bankruptcy proceedings, and asking that a transfer of certain negotiable paper and assets placed in the hands of the petitioner Leo M. Butzel, as trustee, to secure a debt of

$25,000 to Albert Feldheim, the other petitioner here, within four months of the filing of said petition in bankruptcy, be set aside. The subpoena in that suit was served on these petitioners, who filed an answer. On March 20, 1901, Albert Ives, Sr., died and Albert Ives, Jr., was appointed administrator of his estate. On June 5, 1901, these petitioners filed a petition in the district court, charging that Albert Ives, Sr., at the time he executed the power of attorney, and at the time of the institution of the proceedings in bankruptcy and the adjudication, was mentally incompetent, and for that reason the proceedings, so far as they pertain to the firm of A. Ives & Sons and to the estate of Albert Ives, Sr., are void, and asking that the adjudication, so far as it relates to the firm and the estate of Albert Ives, Sr., be set aside, and the appointment of the trustee vacated. The delay in filing their petition is sought to be excused by the petitioners by saying 'that the facts in reference to the matters herein contained have become known to them only recently, and they thereupon have begun this proceeding. ' To this petition the trustee and Albert Ives, Jr., administrator of the estate of Albert Ives, Sr., filed a demurrer, which was sustained by the court, and the petition dismissed. To review that order this petition has been filed.

Before LURTON and DAY, Circuit Judges, and WANTY, District Judge.

WANTY District Judge, after making the foregoing statement of the case, .

1. The trustee urges in this court that the remedy of the petitioners, if any, is by an appeal from the order sustaining the demurrer, and that the 10 days provided for an appeal expired before the petition here was filed. Section 25 of the bankruptcy act of 1898 provides that appeals may be taken in bankruptcy proceedings to the circuit court of appeals from judgments adjudging or refusing to adjudge the defendant a bankrupt, granting or denying a discharge, and allowing or rejecting a debt or claim of $500 or over, and that such appeals shall be taken within 10 days after the judgments appealed from have been rendered. An order sustaining a demurrer to a petition filed for the purpose of vacating an adjudication is not referred to in this section, and is not a judgment from which an appeal will lie, within its purview. It rather comes within section 24, authorizing the circuit court of appeals 'to superintend and revise in matters of law proceedings of the several inferior courts of bankruptcy within their jurisdiction,' which provides a summary mode of reviewing the orders of the bankruptcy courts upon questions of law on petitions filed in the appellate court by parties aggrieved. Courier-Journal Job printing Co. v. Schaffer-Meyer Brewing Co., 41 C.C.A. 614, 101 F. 699; In re Seebold, 45 C.C.A. 117, 105 F. 910; and the large number of cases in the note in Re Eggert, 43 C.C.A. 12-15.

2. The petition shows that several terms of court intervened between the adjudication sought to be vacated and the filing of the petition, and it is urged that an adjudication in bankruptcy is under the control of the court only during the term at which it is made, and can be set aside or modified only during that term; that it, like all other judgments, passes beyond the power of the court when the term at which it was made closes, unless steps are taken during that term to vacate or correct it. The supreme court of the United States has, in strong language, expressed this view in all cases coming within the principle of the cases it was considering when the expressions were made, and that view is not open to question. Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797; Phillips v. Negley, 117 U.S. 665, 6 Sup.Ct. 901, 29 L.Ed. 1013. But in section 2 the bankruptcy act seems to contemplate that from the filing of the petition to the closing of the estate the proceeding shall be continuous, and a court...