64 F.2d 752 (8th Cir. 1933), 9570, Dealers Finance Co. v. Coulter

Docket Nº:9570.
Citation:64 F.2d 752
Case Date:March 22, 1933
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 752

64 F.2d 752 (8th Cir. 1933)




No. 9570.

United States Court of Appeals, Eighth Circuit.

March 22, 1933

Appeal from the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.

Will G. Akers, of Little Rock, Ark., for appellant.

C. E. Wright, of El Dorado, Ark., for appellee.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from an order of the United States District Court for the Western District of Arkansas, which modified and affirmed, as modified, an order of the referee in bankruptcy, hereafter called the referee.

The order of the referee dealt at length with a claim by appellant against the estate of J. W. Walker Music Company, bankrupt, and with objections thereto of the trustee in bankruptcy. The conclusion reached by the referee is expressed in the following language: 'Ordered that unless the proceeds of the items referred to in Trustee's allowed objections are accounted for and surrendered, the asserted claim by the Dealers Finance Company is disallowed.'

The modification made by the District Court to the order of the referee is not in question upon this appeal.

The original order of the District Court affirming the order of the referee was dated October 15, 1931. An error in regard to a mentioned date occurred in the order. The District Court of its own motion, on October 24, 1931, for the purpose of correcting the error, set aside the order of October 15, 1931, and re-entered the same nunc pro tune with the error corrected.

The petition for appeal from the order of the District Court of October 15, 1931, was filed January 16, 1932, and was allowed the same day.

The first question which challenges our attention is whether the appeal was taken in time. This question is raised by appellee's motion to dismiss the appeal. It would be the duty of the court to pass upon the question in the absence of a motion, for it is jurisdictional. Broders v. Lage, 25 F.2d 288 (C. C. A. 8); Collins v. United States, 24 F.2d 823 (C. C. A. 8); Kiehn v. Dodge County, 19 F.2d 503 (C. C. A. 8); In re Thomlinson Co., 154 F. 834 (C. C. A. 8); In re Holmes, 142 F. 391 (C. C. A. 8).

The relevant statutes governing the time for taking appeals in bankruptcy matters are set out in the margin. 1

Page 753

Appellee contends that this appeal was taken under the provisions of section 24 of the Bankruptcy Act as it now stands amended (11 USCA § 47); and that said section 24 of the Bankruptcy Act limits the time for filing the petition for appeal thereunder to 'within thirty days after the judgment, or order, or other matter complained of, has been rendered or entered'; and that the record shows that the appeal was not taken within the time limited.

Appellant contends that the present appeal was taken in a plenary suit, and that it is, therefore, governed by the provisions of the Judicial Code (28 USCA § 861, 28 USCA §§ 861a, 861b, and by 28 USCA § 230), which provisions fix the time for taking such appeals at three months.

Appellant further contends that the three months' period is to be computed from the actual date of the entry of the nunc pro tunc order, to wit, October 24, 1931.

These opposing contentions make necessary a determination of the character of the proceeding of suit in which the order appealed...

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