Bowman v. Lopereno
| Decision Date | 09 December 1940 |
| Docket Number | No. 59,59 |
| Citation | 85 L.Ed. 177,311 U.S. 262,61 S.Ct. 201 |
| Parties | BOWMAN v. LOPERENO et al |
| Court | U.S. Supreme Court |
Mr. Llewellyn A. Luce, of Washington, D.C., for petitioner.
No appearance for respondents.
The sole question for decision is whether the Circuit Court of Appeals property dismissed as untimely an appeal from an order made by a District Court sitting in bankruptcy.
The proceeding was initiated by the petitioner, hereinafter spoken of as the debtor, in the District Court, for an extension under § 74 of the Bankruptcy Act as amended.1 The petition, filed May 23, 1935, was referred to a referee, who denied it July 26, 1935. May 15, 1936, the court, on petition for review, re-referred the cause to a referee, who, on August 19, 1936, filed his certificate with the court in which he concluded: 'I therefore recommend that the proposal or proposals of the debtor for an extension under § 74 of the Bankruptcy Act be not confirmed, and that the debtor be adjudicated a bankrupt.'
August 21, 1936, the District Court, reciting the referee's recommendation, made an order adjudicating the debtor a bankrupt and again referring the cause to the referee for further proceedings in bankruptcy.
August 28, 1936, the debtor prayed a review and the referee certified the matter to the court. In the petition for review both the action of the referee in reporting his recommendations instead of granting or dismissing the petition for extension, and the action of the court on the referee's report adjudicating the debtor a bankrupt, were challenged. September 10, 1936, the debtor filed a petition for rehearing of the order of adjudication, praying that it be vacated and the cause reheard. October 14, 1936, motion was filed by the debtor, after due notice to the parties in interest, praying that the order of adjudication be vacated and the proceeding dismissed without prejudice.
October 16, 1936, a district judge heard the motion for rehearing and the motion to vacate the adjudication and entered an order that the entire matter of the debtor's petition for extension which was re-referred to the referee May 15, 1936, be again re-referred to him with direction to hear and consider the petition for extension and any supplemental petition, and to make an order or orders thereon as provided by the Act and the General Orders, and continuing: 'it is further ordered that all proceedings herein, other than those hereinabove ordered, and particularly any further proceedings under the Adjudication and Order of Reference under Section 74 entered on August 21st, 1936, be stayed until the further order of this Court made by a Judge thereof.' It will be observed that the court did not finally dispose of the petition and motion so far as they were directed to the adjudication of the debtor.
Proceedings on a supplemental proposal of extension were had before the referee from time to time and eventuated, on June 14, 1937, in an order denying the petition for extension. The debtor presented a petition for review to the referee July 15, 1937, and thereupon the latter made and forwarded to the court his certificate reciting the proceedings and certifying the evidence. The matter came on for hearing before the District Court and, on October 25, 1937, a judge of that court confirmed the order of the referee and ordered that the stay of proceedings under the order of adjudication of August 21, 1936, should be vacated and that the referee should proceed to perform his duties under the adjudication and order of reference.
November 15, 1937, the debtor filed a petition for rehearing in which he asked, inter alia, that the adjudication in bankruptcy be vacated and set aside. On the same day a judge of the District Court endorsed upon the petition: 'This petition having been 'seasonally presented' and 'entertained' by the above entitled court, permission to file same is hereby granted.'
The petition for rehearing was heard by a judge of the District Court and, on February 17, 1938, he rendered his opinion and made an order thereon. In re Bowman, 24 F.Supp. 381, 382. In the opinion he said 'This matter is before the Court (a) on a petition to review an order of this court denying review of an order to set aside adjudication; (b) on a petition to review an order of the Referee calling a meeting of creditors for electing, and electing a trustee, in the above entitled estate.'
His order was: 'The petition for review is denied.'
March 18, 1938, an appeal to the Circuit Court of Appeals was allowed by the District Court. In his...
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