City of Fort Lauderdale v. Freeman, 13927.

• Decision Date: 10 May 1952
• Docket Number: No. 13927.,13927.
• Parties: CITY OF FORT LAUDERDALE v. FREEMAN et al.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 122 (1952)

CITY OF FORT LAUDERDALE v. FREEMAN et al.

No. 13927.

United States Court of Appeals Fifth Circuit.

May 10, 1952.

C. A. Hiaasen, James M. Crum and Thomas O. Berryhill, all of Fort Lauderdale, Fla., for appellant.

John W. Fleming, T. F. Fleming, Fort Lauderdale, Fla., Charles H. Warwick, Jr., West Palm Beach, Fla., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

Aggrieved at an order¹ of the district judge, which had affirmed the order of the referee deferring action on the city's petition and continuing the trustee in possession, the City, appealing on a statement of points and a limited record, is here insisting that the order appealed from was erroneously entered and must be reversed.

The trustee, pointing out that the orders of referee and judge were not final but interlocutory, indeed were not in a legal sense dispositive, insists: (1) that the referee's order² was not reviewable³ by the judge; and (2) that the judge's order was not appealable.

In addition, insisting that the appeal should be dismissed as moot, it attaches to its motion an order⁴ of the referee dated Feb. 29, 1952, ordering the trustee to liquidate the assets of the bankrupt and to abandon and vacate the premises occupied by him.

In support of its second point, appellee, pointing to the nature of the relief sought by appellant and canvassing the cases dealing with the distinction between a proceeding in bankruptcy and a controversy arising in a proceeding in bankruptcy,⁵ and to the rule that appeals from interlocutory orders in bankruptcy which are trivial in their effect on the proceedings may be refused,⁶ relies strongly on our case of Universal Oil Products v. Cosden Petroleum Corp., 5 Cir., 178 F.2d 495, construing 11 U.S.C.A. § 47.

Appellant, with a display of learning and a wealth of citation deserving of a better and stronger cause, attacks appellee's claim, that the order appealed from was entered in a controversy arising in a proceeding in bankruptcy.

Insisting that it was entered in a proceeding in bankruptcy and marshalling its cases in support, it urges upon us, in addition, that if this is not so, this court would still have jurisdiction under Sec. 1292(1), Title 28, because the appeal was in part from an order refusing to dissolve or modify an injunction.

We cannot agree with either of these propositions. Upon the first, the authorities settle it, we think, that this was a controversy, and a very considerable one, arising in a proceeding in bankruptcy. Upon its alternative proposition that the appeal should be entertained because it was in part from an order refusing to dissolve an injunction, the record does not support appellant. The statement of points made in connection with appellant's limited appeal shows that no appeal was taken from, no complaint made of, the order to the extent that it might be considered as refusing to dissolve the injunction. In addition, it is perfectly clear that no order refusing to dissolve the injunction was made. There was only a deferment to another day of a hearing on the matter.

Agreeing with appellee throughout, we are in no doubt that the orders entered by referee and judge were interlocutory, and that the petition to review the order of the referee and the appeal from the order of the judge were improvidently taken. Neither are we in any doubt that the appeal from the district judge's order should be dismissed. Even if the order be regarded as one entered in a proceeding in bankruptcy rather than in a controversy arising therein, it is a wise and salutary rule that appeals from interlocutory orders in bankruptcy, which, as this one is, are trivial in their effect on the proceedings may be refused, and that interlocutory orders in bankruptcy proceedings, which are dispositive of nothing, are not reviewable, and appeals therefrom should be dismissed.

This case forcefully illustrates the wisdom of that rule. Here instead of proceeding with a hearing on its petition by offering evidence, as requested by the referee and suggested by the judge, and thus bringing the matter to a head, the City instituted and pressed a fruitless appeal from an order which determined nothing whatever and put no obstacle of any kind in the way of its obtaining the relief it desired....