Johnson v. Wilson

Citation118 F.2d 557
Decision Date27 March 1941
Docket NumberNo. 9580.,9580.
PartiesJOHNSON v. WILSON. In re MINA GOLD MINES CO.
CourtUnited 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.

DENMAN, Circuit Judge.

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 ordered that judgment be, and the same hereby is, granted in favor of defendant upon the ground that the evidence is insufficient to establish that defendant had reasonable cause to believe that a preference would thereby be effected by the payments in question to him made and by the action sought to be recovered. The plaintiff is granted an exception to this order. The Court reserves jurisdiction to later file an opinion and to make any further orders in the case."

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:

"Order

"The trustee's objections to Amended Claim No. 11, being the claim of Wayne T. Wilson in the sum of Eighteen Hundred Seventy-five Dollars ($1875.00), came on for hearing before the undersigned Referee in Bankruptcy pursuant to due and legal notice thereof at the hour of 10:30 A. M., on the 15th day of May, 1935, and was continued throughout the 15th and 16th days of May, 1935.

"The claimant appeared in person and the trustee appeared in person and by his attorneys, Messrs. Painter, Withers & Edwards.

"The Referee having heard the evidence introduced and having considered the files and records in the case,

"Finds:

"1. That the Mina Gold Mines Company, was on January 4, 1934, and at all times thereafter was, insolvent.

"2. That throughout the existence of the bankrupt corporation Wayne T. Wilson was attorney for the bankrupt and that from November 20, 1933 up to a few days before the filing of the petition in bankruptcy on the 20th day of February, 1934, was trustee of the bankrupt corporation and was in sole charge of the bankrupt's business, books and records and hence, is chargeable with the actual knowledge of the bankrupt's insolvency on January 4, 1934, and thereafter.

"3. That the payments by Wayne T. Wilson as trustee to himself on his personal account on the following dates and in the following...

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9 cases
  • In re Nathan
    • United States
    • U.S. District Court — Southern District of California
    • June 28, 1951
    ...v. Gray, 1914, 236 U.S. 70, 73-75, 35 S.Ct. 227, 59 L.Ed. 471; Giffin v. Vought, supra, 175 F.2d at pages 189-190; Johnson v. Wilson, 9 Cir., 1941, 118 F.2d 557, 560; In re Florsheim, supra, 24 F.Supp. at page 992. Then would follow plenary action in a court of general jurisdiction involvin......
  • Katchen v. Landy, 28
    • United States
    • U.S. Supreme Court
    • January 17, 1966
    ...Ullman, Stern & Krausse v. Coppard, 246 F. 124 (C.A.5th Cir. 1917); Breit v. Moore, 220 F. 97 (C.A.9th Cir. 1915); Johnson v. Wilson, 118 F.2d 557 (C.A.9th Cir. 1941); see In re J. R. Palmenberg Sons, 76 F.2d 935 (C.A.2d Cir. 1935), aff'd sub nom. Bronx Brass Foundry, Inc. v. Irving Trust C......
  • Slimick, In re
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 4, 1990
    ...The absence of requisite findings of fact is not such a jurisdictional defect as would prevent an appeal. See also Johnson v. Wilson, 118 F.2d 557, 558-59 (9th Cir.1941) (bankruptcy court's order granting judgment and reserving jurisdiction to later file opinion was final and appealable). B......
  • Katchen v. Landy
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • September 9, 1964
    ...195 U.S. 276, 25 S.Ct. 58, 49 L.Ed. 193. A similar holding appears in Giffin v. Vought, 175 F.2d 186 (2d Cir.), and in Johnson v. Wilson, 118 F.2d 557 (9th Cir.). A clear indication that the determination of the issue of preference during the hearing on the claim is not a matter of consent ......
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