Johnson v. Wilson
Citation | 118 F.2d 557 |
Decision Date | 27 March 1941 |
Docket Number | No. 9580.,9580. |
Parties | JOHNSON v. WILSON. In re MINA GOLD MINES CO. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Painter, Withers & Edwards, by T. L. Withers, all of Reno, Nev., for appellant.
Emerson J. Wilson, of Reno, Nev., for appellee.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
Motion to dismiss and motion to supplement the record. Wayne T. Wilson, the defendant below, hereafter called Wilson, in whose favor the judgment was given, thereafter died; appellee was substituted as the party appellee by order of this court. Appellee has moved to dismiss this appeal on the ground that judgment had been entered by the district court on May 10, 1939, a motion for a new trial denied on November 4, 1939, and that not until June 6, 1940, was there filed a notice of appeal.
Accompanying the notice of motion to dismiss is a transcript of the record certified by the clerk of the district court. This transcript contains a notice of appeal of June 6, 1940. It is agreed that the record of the district court contains an earlier notice of appeal filed on December 19, 1939, appealing from the judgment of May 10, 1939, and coming within thirty days of the denial of the motion for a new trial. The transcript contains a stipulation of the parties designating what shall constitute the record on appeal. In this stipulation there is no agreement for omitting any notice of appeal. Rule 75(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that whether or not designated the clerk of the district court shall include in the transcript of the record on appeal the notice of appeal. The clerk failed to include the notice of December 19, 1939.
Quite likely the reason for this omission is because the record was not finally agreed upon by the parties until June 6, 1940 — that is after an elapse of time in excess of that allowable by the district judge for the filing here of the transcript of the record on the earlier notice of appeal.
However, since this court has the power to consider the appeal though the filing of the record came after the time allowable by the district court, (Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F. 2d 83, 84), the clerk should have included the notice of appeal of December 19, 1939, and left to our discretion the disposition of the appeal. Since the record presents a strongly arguable claim of error and the delay is not shown to have prejudiced the appellee, we consider the appeal of December 19, 1939, on the judgment of May 10, 1939. The motion to dismiss the appeal is denied.
The judgment of May 10, 1939, states:
It is claimed that though the judgment is instantly granted by the words "It is ordered that judgment be, and the same hereby is, granted in favor of defendant," it is not final because the court reserves jurisdiction to write an opinion and to make further orders in the case. The reserved right to file an opinion is not inconsistent with the finality of the judgment. A reservation to make further orders does not mean orders inconsistent with the finality of the judgment. Such orders well may have to do with costs or the execution of the orders in connection with the appeal. We deem the judgment final.
The merits of the Appeal.
Appellant, plaintiff below, sued Wilson to recover moneys paid to himself as an individual in an attempted partial discharge of an antecedent debt while he was a trustee and manager of the Mina Gold Mines Company and within four months prior to filing an involuntary bankruptcy proceeding against it, when that corporation was insolvent and when he had reasonable cause to believe that such payments would constitute a preference and enable him to secure a greater percentage of the debt than could be obtained by other creditors of the same class.
Appellant's amended complaint below alleged that appellant had claimed these payments were preferential in a proceeding before the referee in bankruptcy, in which Wilson sought to have allowed his claim against the bankrupt and appellant had contended it should not be allowed because of his preferred payments to himself. It also alleged the referee had adjudicated in that proceeding that they were such preference payments to Wilson in the following order:
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