Benjamin v. Buell
| Decision Date | 05 October 1920 |
| Docket Number | 2793. |
| Citation | 268 F. 792 |
| Parties | BENJAMIN v. BUELL. In re SCHISSEL. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rehearing Denied December 9, 1920.
Bernard J. Brown, of Chicago, Ill., for appellant.
Fred E Newton, of Chicago, Ill., for appellee.
Before ALSCHULER and PAGE, Circuit Judges.
The appeal herein was prayed and allowed and bond filed within due time, but assignment of errors was not filed for more than six months after entry of decree. Appellee moved to dismiss the appeal on the ground that under rule 11 of this court (150 F. c, 79 C.C.A. c) the filing of the assignment of errors is jurisdictional, and unless filed within the statutory six months there was properly no appeal. We think the rule itself negatives such conclusion, in that it provides that under certain circumstances the court may notice errors not assigned at all, and hence in its discretion may consider an appeal even without assignment of errors, thus clearly indicating that the provisions of the rule respecting assignment of errors are not jurisdictional. In Hultberg v. Anderson, 203 F. 853, 122 C.C.A. 171 this court held that, notwithstanding the rule requiring assignment of errors to be first filed, prior filing was not jurisdictional, and failing to so file did not vitiate an appeal otherwise properly taken. The motion to dismiss the appeal is denied.
The appeal is from a decree in equity requiring appellant to pay to the trustee of the bankrupt estate of Sam Schissel $6,641 as an unlawful preference to appellant. The bill of complaint charged that appellant, knowing the bankrupt to be insolvent within four months of the bankruptcy was paid by bankrupt $1,400 on a prior indebtedness of the bankrupt to appellant, and that very shortly before the bankruptcy, in order to secure to himself the payment of a considerable balance then due from the bankrupt to appellant, and to hinder and defraud the other creditors of the bankrupt, there was turned over to appellant about $5,000 worth of the bankrupt's goods, which were stored away and fraudulently concealed from the trustee in bankruptcy.
It appears from undisputed evidence that for a considerable time prior to the bankruptcy appellant had been advancing funds to appellee, and that about the middle of September bankrupt owed appellant in the neighborhood of $3,000; that about that time the bankrupt undertook to purchase about $5,500 of woolens from the firm of Cohen & Sons, and paid $100 thereon. Unable to obtain from Cohen & Sons credit for the goods, he made an arrangement with appellant, whereby appellant would settle with Cohen for the purchase price of the goods, and the bankrupt would sell them, and the profits on the sale would be divided equally between appellant and the bankrupt. Appellant settled for the goods, about half in cash and half with his note. Shortly afterwards appellant, claiming he had pressing need for money, urged the bankrupt to let him have some, and was given about $1,400, which the bankrupt testified was not intended to be payment on the indebtedness but was agreed by appellant to be returned to the bankrupt in very short time, which agreement, however, is denied by appellant. It seems that a few weeks later, and a very short time before the bankruptcy, bankrupt demanded that appellant return the amount so paid as per alleged agreement. Appellant not...
To continue reading
Request your trial
-
Harrison v. Merchants Nat. Bank
...D.C.Ark.1905, 139 F. 209; Coder v. McPherson, 8 Cir., 1907, 152 F. 951; McElvain v. Hardesty, 8 Cir., 1909, 169 F. 31; Benjamin v. Buell, 7 Cir., 1920, 268 F. 792; Continental Nat. Bank v. Moore, 9 Cir., 1924, 299 F. 270 — where the court affirmed the findings of the trial court, who determ......
-
Matter of Hulk
...v. Ward, 59 Conn. 188, 22 A. 149 (1890). Transfers arising out of such a relationship do not give rise to preferences. Benjamin v. Buell, 268 F. 792 (7th Cir. 1920); Ortlieb v. Baumer, 6 F.Supp. 58 (S.D.N.Y.1934); Malone v. Gimpel, 151 F.Supp. 549 (N.D.N.Y.1957), affirmed 244 F.2d 954 (2d C......
-
United States v. Dieckmann
...held that assignments of error are not jurisdictional. See Hultberg v. Anderson, 7 Cir., 203 F. 853, and cases there cited; Benjamin v. Buell, 7 Cir., 268 F. 792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v. Lea, 4 Cir., 210 F. 583; Robinson v. U. S., 5 C......
-
In re Marley-Morse Co.
... ... debt, exceeding as it does the indebtedness to this creditor ... at the time the agreement was made. Benjamin v. Buell ... (C.C.A.) 268 F. 792; Ill. Parlor Frame Co. v ... Goldman, 257 F. 300, 168 C.C.A. 384; Lake View State ... Bank v. Jones, 242 F. 821, ... ...