C.C. Taft Co. v. Century Sav. Bank

• Decision Date: 21 October 1905
• Docket Number: 2,100.
• Citation: 141 F. 369
• Parties: C. C. TAFT CO. v. CENTURY SAVINGS BANK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 369

C. C. TAFT CO. v. CENTURY SAVINGS BANK et al.

No. 2,100.

United States Court of Appeals, Eighth Circuit.

October 21, 1905

Silas B. Allen and H. F. Dale, for appellant.

Charles A. Dudley and Nathan E. Coffin, for appellees.

E. Dean Fuller, for bankrupt.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

This was a proceeding instituted by the Century Savings Bank, Todd & Draft, and S. I. Ettinger, three creditors of N. Benjamin Cohen, to secure an adjudication of bankruptcy against him. Pursuant to the right conferred by section 18, subd 'b', of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 551 (U.S. Comp. St. 1901, p. 3429)), the C. C. Taft Company, a corporation, and creditor of the alleged bankrupt duly appeared and pleaded to the petition. Subsequently there was a demurrer filed to the plea, exceptions to the demurrer amendment of the plea, and final adjudication of the bankrupt. Within 10 days after the judgment of adjudication the C. C. Taft Company duly perfected its appeal to this court.

There is, first, for consideration a preliminary motion filed by the petitioning creditors to dismiss the appeal. They allege two grounds for their motion: First, that the cause was heard on its merits, and the record does not contain the evidence heard on the issues raised by the pleadings; second, that the question presented by the appeal is the revision in matter of law of the proceedings of the bankruptcy court, and therefore to be considered on petition to revise the proceedings pursuant to the provisions of section 24, subd. 'b,' of the bankruptcy act (30 Stat. 553 (U.S. Comp. St. 1901, p. 3432)), rather than by appeal. The first ground of the motion involves a misconception of the record. The only entry determinative of what was done is as follows:

'At Des Moines, in said district, on the 10th day of June A.D. 1904, before the undersigned, judge of said court in bankruptcy sitting, the petition of Todd & Draft, and others, Des Moines, of the county of Polk and district aforesaid, that N. Benjamin Cohen be adjudged a bankrupt, within the true intent and meaning of the act of Congress relating to bankruptcy, being presented by Dudley & Coffin, attorneys for petitioners, and the same having been heard and duly considered, N. Benjamin Cohen is hereby declared and adjudged a bankrupt accordingly.'

Then follows the order of reference to one of the referees in bankruptcy. From the foregoing record entry it appears that the judgment of adjudication went on a consideration of the petition either alone or as modified by the other pleadings. It is probable that with an answer on file a submission of the case on the petition, as this was stated to be, would necessarily imply a submission on the petition in the light of the answer on file with it; in other words, a submission on the pleadings. It is certain that the submission as made was either on the petition alone or on the pleadings in the case, for there is nothing found in the record indicating a submission on evidence adduced, or a submission on the issues joined. The failure, therefore, to incorporate evidence in the record, when there is nothing to show any evidence was taken, affords no ground for dismissing this appeal.

The second reason assigned for dismissing the appeal is also without merit. The judgment appealed from was the final judgment of adjudication. Explicit authority is found for the review of such a judgment by appeal in section 25a of the bankruptcy act, which reads as follows:

'That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals of the United States, * * * in the following cases, to wit: (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt. * * * Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be.'

It is true the cases of Dodge v. Norlin, 133 F. 363, 66 C.C.A. 425, Plymouth Cordage Co. v. Smith, 194 U.S. 311, 24 Sup.Ct. 725, 48 L.Ed. 992, and In re Plymouth Cordage Co., 135 F. 1000, 68 C.C.A. 434, afford authority for the proposition that the judgment appealed from might have been reviewed on a petition for revision pursuant to section 24b of the bankruptcy act, but all these cases clearly recognize that section 25a is also available to any party aggrieved by a judgment adjudging or refusing to adjudge one a bankrupt. It follows that the motion to dismiss the appeal is not well taken.

The assignment of errors presents many questions touching the regularity of the proceedings below, but the view we take of the jurisdictional question suggested in our order of January 13, 1905, requiring appellees to show cause why the adjudication of bankruptcy should not be reversed for want of jurisdiction in the court below, supersedes the necessity of considering them or any of the other questions raised by the record. The fact that the parties failed to suggest want of jurisdiction to the court below, or to this court, is of no importance. It is the duty of this court, sua sponte, to take notice of want of jurisdiction if the same appears by the record. Chapman v. Barney, 129 U.S. 677, 681, 9 Sup.Ct. 426, 32 L.Ed. 800; Mattingly v. N.W. Virginia Railroad, 158 U.S. 53, 57, 15 Sup.Ct. 725, 39 L.Ed. 894; Yocum v. Parker, 130 F. 770, 66 C.C.A. 80, and cases cited.

An inspection of the petition discloses that there is no allegation showing the amount of the bankrupt's indebtedness. Section 4b of the bankruptcy act of 1898 (30 Stat. 547 (U.S. Comp. St. 1901, p. 3423)), as amended by the act of February 5, 1903, (32 Stat. 797, c. 487, Sec. 3 (U.S. Comp. St. Supp. 1905, p. 683)), reads as follows:

'Any natural person, except a wage-earner, or person engaged chiefly in farming or the tillage of the soil, any

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