Bacon v. Roberts

• Decision Date: 10 September 1906
• Docket Number: 13.
• Citation: 146 F. 729
• Parties: BACON v. ROBERTS et al.
• Court: U.S. Court of Appeals — Third Circuit

146 F. 729

BACON v. ROBERTS et al.

No. 13.

United States Court of Appeals, Third Circuit.

September 10, 1906

Thomas E. French, for appellant.

Theodore W. Reath, for appellees.

Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.

PER CURIAM.

The present case was originally brought before this court on appeal by the trustees of the bankrupt, but it was afterwards stipulated by counsel that we should be at liberty to consider the matter as if it were before us upon a petition for review. In either aspect it presents a single question which may perhaps be best understood by quoting the opinion of the court below, which states clearly the ground upon which the decision of Judge CROSS was put. His opinion is as follows:

'The referee in the above cause, on the 2d day of September 1905, filed an order sustaining and allowing the claim of Thomas Roberts & Co., creditors, against the said bankrupt's estate; on the 23d day of October, 1905 aforesaid, 50 days after such decision and order, a petition for review of said order was filed with the referee. Motion is now made upon notice to dismiss said petition upon facts appearing upon the files and record of the case. There is no time specified in the bankruptcy act within which such petition shall be filed. The authorities however, all hold that it should be filed within a reasonable time, and that what constitutes reasonable time should be determined by the facts in each case. The act undoubtedly contemplates that in the absence of any excuse warranting delay, the petition should be filed with a considerable degree of promptness; its manifest policy requires reasonably expeditious administration of the bankrupt's estate. In the matter of appeals from the District Court of Appeals, the act provides that such appeal shall be taken within 10 days after the judgment appealed from was rendered (section 25, Act July 1, 1898, c. 541, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432)) and appeals from the Circuit Court of Appeals to the Supreme Court of the United States must be taken within 30 days. Gen. Orders in Bankruptcy, No. 36, par. 2 (89 F. xiv; 32 C.C.A. xxxvi). Reasoning by analogy, therefore, it would seem as though 30 days were the outside limit in which to take an appeal from a referee's decision. The labor involved therein is not great, nor is the proceeding either complex or intricate. In the absence of any rule or authority to the contrary, I am unwilling in any ordinary case, where there is no adequate excuse for delay, to say that 30 days is not ample time in which to perfect such an appeal; any longer period than that seems altogether unreasonable and unnecessary, and ought not to be sanctioned.

'In Re New York Economical Printing Co., 106 F. 839, 45 C.C.A. 665, a motion to dismiss a petition for review made on the ground that the same had not been taken within ten days was denied, the court said: 'Neither the statute nor the rules limit the time within which a petition for review in bankruptcy should be filed. We do not think there has been any unreasonable delay in this case (the time does not appear), and therefore deny the motion to dismiss. A new rule of this court will control future applications for review.'

'In Re Milgraum & Ost (D.C.) 133 F. 802, a petition was filed for review; there was a doubt as to whether the question for review was upon the allowance of the claim by the referee, in which case more than six months had elapsed before the petition for review was filed, or was upon a refusal to expunge the creditor's claim, in which case the period of delay was three months; in either case the court held the delay unreasonable.

'In First National Bank of Troy v. Cooper, 20 Wall. 171, 22 L.Ed. 273, where a bill of review was dismissed because filed too late, Mr. Justice Strong, in delivering the opinion of the court, said:

''It is true their bill was not filed in the Circuit Court until about four months and a half after the order complained of was made. But the act of Congress prescribes no time within which the application for a review must be presented. An appeal is required to be taken within 10 days. Not so with a petition or bill for a review. Undoubtedly, the application should be made within a reasonable time, in order that the proceedings to settle the bankrupt's estate may not be delayed, but neither the act of Congress nor any rule of this court determines what that time is. At present, therefore, it must be left to depend upon the circumstances of each case. Perhaps, generally, it should be fixed in analogy to the period designated within which appeals must be taken.'

'I am also referred by counsel of the creditors to the case In re Sharick, 1 Alaska, 398, which I have not been able to examine; the opinion, however, is

...