Benjamin v. Buell, 2793.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
PartiesBENJAMIN v. BUELL. In re SCHISSEL.
Decision Date05 October 1920
Docket Number2793.

268 F. 792

BENJAMIN
v.
BUELL.

In re SCHISSEL.

No. 2793.

United States Court of Appeals, Seventh Circuit.

October 5, 1920


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.

ALSCHULER, Circuit Judge.

The appeal herein was prayed and allowed and bond filed within due time, but assignment of errors [268 F. 793] 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....

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4 practice notes
  • Harrison v. Merchants Nat. Bank, No. 11989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 19, 1942
    ...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 determined that the ......
  • Matter of Hulk, Bankruptcy No. 2-80-00764
    • United States
    • United States Bankruptcy Courts. Second Circuit
    • January 13, 1981
    ...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, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 13, 1939
    ...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 Cir., 84 F.2d 885; Robe......
  • In re Marley-Morse Co., 2871.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 26, 1921
    ...of the entire 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, 155 C.C.A. 409. The order of the Dis......
4 cases
  • Harrison v. Merchants Nat. Bank, No. 11989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 19, 1942
    ...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 determined that the ......
  • Matter of Hulk, Bankruptcy No. 2-80-00764
    • United States
    • United States Bankruptcy Courts. Second Circuit
    • January 13, 1981
    ...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, No. 6572.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 13, 1939
    ...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 Cir., 84 F.2d 885; Robe......
  • In re Marley-Morse Co., 2871.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 26, 1921
    ...of the entire 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, 155 C.C.A. 409. The order of the Dis......

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