Ahlstrom v. Ferguson, 2278

• Decision Date: 27 November 1928
• Docket Number: 2279.,No. 2278,2278
• Citation: 29 F.2d 515
• Parties: AHLSTROM v. FERGUSON (two cases).
• Court: U.S. Court of Appeals — First Circuit

29 F.2d 515 (1928)

AHLSTROM v. FERGUSON (two cases).

Nos. 2278, 2279.

Circuit Court of Appeals, First Circuit.

November 27, 1928.

Mark M. Horblit and Robert Harpel, both of Boston, Mass. (Jacob Wasserman and Horblit & Wasserman, all of Boston, Mass., on the brief), for appellant.

Reuben Hall, of Boston, Mass., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

The first question in this case is raised by the appellee's motion to dismiss these two appeals, on the ground that the matters involved are proceedings in bankruptcy, as distinguished from controversies arising in bankruptcy proceedings; that, such being the situation, the appeals were required to be perfected under section 24b, as amended May 27, 1926 (11 USCA ß 47(b), which requires appeals in such matters to be on application to this court, and allowed in the discretion of the court, the application for allowance to be made "within 30 days after the judgment, or order, or other matter complained of has been rendered or entered." The order complained of in No. 2278 was rendered May 11, 1928, adjudging the appellant in contempt of court for disobedience of the referee's order to turn over a certain book of the bankrupt's and ordering him committed until further order of the court, but which was not formally entered until July 27, 1928, when this was done as of May 11, 1928. The order complained of in No. 2279 was entered June 19, 1928, sustaining appellee's objections to appellant's prÊcipe in his appeal No. 2278. Application was made in both matters to the District Court for leave to appeal, appeals were perfected in compliance with the usual requirements in equity matters, and the transcripts of record in the two cases were filed and entered in this court August 16, 1928, but no application calling upon us to exercise our discretion and allow either appeal has been presented to or allowed by this court.

Proceedings to punish for contempt in failing to obey an order of the bankruptcy court to turn over the bankrupt's books or assets have consistently been held to be proceedings in bankruptcy within the meaning of that term as used in section 24b of the Bankruptcy Act. United States v. Moore (C. C. A.) 294 F. 852; Kirsner v. Taliaferro (C. C. A.) 202 F. 51; Freed v. Central Trust Co. (C. C. A.) 215 F. 873. And since the amendment of section 24b by the Act of May 27, 1926, the review of such matters in this court is by appeal, but the appeal is to be allowed only in the discretion of this court, application to which must be made within 30 days after the order complained of has been "rendered or entered." Section 24c. See, also, Taylor v. Voss, 271 U. S. 176, 46 S. Ct. 461, 70 L. Ed. 889; White v. Barnard et al. (C. C. A.) 29 F.(2d) 510, decided by this court November, 1928.

It is contended by the appellant that inasmuch as the records filed in this court each contain a copy of a petition which was presented to the District Court, requesting that court to allow the appeals (which the District Court allowed and caused citations to issue), and also requesting that transcripts of the evidence, records,...