B-R Elec. & Telephone Mfg. Co. v. Aetna Life Ins. Co.

• Citation: 206 F. 885
• Decision Date: 24 June 1913
• Docket Number: 3,876,127.
• Parties: B-R ELECTRIC & TELEPHONE MFG. CO. et al. v. AETNA LIFE INS. CO. et al. SAME v. SOUTHWESTERN ENGINEERING CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

206 F. 885

B-R ELECTRIC & TELEPHONE MFG. CO. et al. v. AETNA LIFE INS. CO. et al.

SAME v. SOUTHWESTERN ENGINEERING CO. et al.

Nos. 3,876, 127.

United States Court of Appeals, Eighth Circuit.

June 24, 1913

Roach &amp Bradley, of Muskogee, Okl., for appellants and petitioners.

Martin Bush & Moss, of Tulsa, Okl., for AEtna Life Ins. Co.

A. J McCarthy, of Oklahoma City, Okl., for Southwestern Engineering Co.

Charles A. Loomis, of Kansas City, Mo., for appellant and petitioner in Nos. 3,877 and 128.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

CARLAND Circuit Judge.

The above-entitled case has been brought here both by appeal and by petition to revise. The order which is sought to be revised is an order made July 15, 1912, by the * * * United States District Court for the Eastern District of Oklahoma, refusing to vacate and set aside an adjudication in bankruptcy made by the same court June 13, 1912. A motion has been made to dismiss the appeal, for the reason that the order is not appealable under the provisions of section 25a of the Bankruptcy Act. That section provides for appeals to this court in the following cases: 1. From a judgment adjudging or refusing to adjudge a defendant a bankrupt. 2. From a judgment granting or denying a discharge. 3. From a judgment allowing or rejecting a debt or claim of $500 or over. We think it is clear that the appeal must be dismissed, as the order appealed from is not one of the judgments mentioned in the law above quoted. In the case of In re Ives, 113 F. 911, 51 C.C.A. 541, the Circuit Court of Appeals for the Sixth Circuit held that an order sustaining a demurrer to a petition filed for the purpose of vacating an adjudication was not appealable.

We now turn to the petition to revise. Section 24b of the Bankruptcy Act provides that the several Circuit Courts of Appeals shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. It will be seen that the statute limits our jurisdiction to that of superintending and revising in matter of law, etc. The record presented on the petition to review hereinbefore referred to presents the following facts:

On June 13, 1912, the AEtna Life Insurance Company filed in the District Court of the United States for the Eastern District of Oklahoma a petition asking said court to adjudge the Southwestern Engineering Company an involuntary bankrupt. The petition alleged two acts of bankruptcy, as follows: That said Southwestern Engineering Company, on or about the 8th day of June, 1912, paid to the Builders' Material Supply Company, one of its creditors, large sums of money, the exact amount of which your petitioner is unable to state, to apply upon its account, or in payment in full of its account, which payment was made by said Southwestern Engineering Company with intent to prefer said Builders' Material Supply Company, and that said sums were received by said Builders' Material Supply Company with knowledge that the said Southwestern Engineering Company was insolvent and that the same was an unlawful preference. That on the same day said Southwestern Engineering Company paid to the American Water Softener Company, one of its creditors, large sums of money, under the same circumstances and conditions as above set forth with reference to the Builders' Material Supply Company.

At the same time the above petition was filed the Southwestern Engineering Company filed a waiver of the issuance and service of subpoena and entered its voluntary appearance in said cause, consenting that the same might be heard at once and that an adjudication in bankruptcy be immediately made. At the same time said Southwestern Engineering Company also filed an answer to the above petition, admitting the allegations thereof, and consenting that an adjudication in bankruptcy be made at once and without further notice whereupon an order of adjudication was made. The waiver of issuance of process was signed by A. J. McCarthy, attorney for Southwestern Engineering Company, and the answer of said company was also signed in the same manner. On June 22, 1912, the Southwestern Engineering Company, by J. B. Davidson, president, filed an answer to the petition of the AEtna Life Insurance Company wherein it denied the acts of bankruptcy set forth in the...