Columbia Ironworks v. National Lead Co.

• Decision Date: 05 January 1904
• Docket Number: 1,279.
• Citation: 127 F. 99
• Parties: COLUMBIA IRONWORKS v. NATIONAL LEAD CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

127 F. 99

COLUMBIA IRONWORKS v. NATIONAL LEAD CO. et al.

No. 1,279.

United States Court of Appeals, Sixth Circuit.

January 5, 1904

Phillips & Jenks, for appellant.

Ferguson & Goodnow, Bernard B. Selling, and William B. Hatch, for appellees.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

Certain creditors of the appellant, the Columbia Ironworks, a Michigan corporation, filed their petition in the District Court, sitting in bankruptcy, setting forth that the appellant was a corporation engaged principally in manufacturing and mercantile pursuits, within the meaning of section 4, subsec. 'b,' of the bankrupt act of July 1, 1898, c. 541, 30 Stat. 547 (U.S. Comp. St. 1901, p. 3423) which had become insolvent, and within four months preceding the filing of the petition had committed several acts of bankruptcy--among them, that it had made a general assignment for the benefit of its creditors-- and praying that it might be adjudged bankrupt. The Columbia Ironworks appeared, and answered that it was not a corporation engaged principally in manufacturing or mercantile pursuits, and denied that it had committed any other of the acts alleged in the petition except in making the assignment for the benefit of its creditors. To this answer the petitioners filed a replication. A reference was ordered to take proofs, and upon the filing of the report, an order was made adjudicating the corporation a bankrupt. Thereupon the corporation appealed to this court, assigning as erred that the District Court erred in holding that it had jurisdiction to hear the cause and determine that the corporation was bankrupt, and further, that it erred in holding that the corporation was engaged principally in manufacturing or mercantile pursuits.

In this court a motion was made by the appellees to dismiss the appeal upon the ground that this court did not have jurisdiction thereof, but that the appeal should have been taken to the Supreme Court of the United States, for the reason that the question of the jurisdiction of the District Court was involved, in that its order adjudged that the Columbia Ironworks was a corporation engaged principally in manufacturing or mercantile pursuits, within the true intent and meaning of the bankrupt act, and upon the further ground that the appeal was not taken within 10 days from the adjudication in bankruptcy.

This court postponed the hearing of said motion to the hearing upon the merits. We think the motion to dismiss the appeal for want of jurisdiction thereof should be disallowed, upon the authority of the case of Denver First National Bank v. Klug, 186 U.S. 202, 22 Sup.Ct. 899, 46 L.Ed. 1127. There can be no question in respect of the jurisdiction of the District Court over the subject-matter, and it seems quite clear that it also had jurisdiction to determine whether the corporation was principally engaged in such a business as that it could be adjudged a bankrupt. That question was one of the elements involved in its determination. It appears that the appeal was prayed and allowed within 10 days, as prescribed by the act, but that the bond after the expiration of the 10 days. But the general rule is that, when an appeal is allowed within the time prescribed by law, it is sufficient for the purpose of removing the case, though it is necessary, in order to perfect the appeal, that a bond should be filed, and that a citation should be issued and served, where, as in this case, the appeal is not prayed in open court. The filing of the bond and the service of the citation are steps to be taken before a motion to dismiss the appeal is made, the court will ordinarily decline to dismiss the appeal because of the delay in filing the bond and serving the citation. In the present case the delay was for a few days only, and we do not think the interests of the opposite party were to any appreciable extent impaired thereby. The motion to dismiss upon that ground is therefore denied.

With respect to the merits, it appears that the corporation was organized under a statute of Michigan providing for the incorporation of manufacturing companies (Comp. Laws 1897, c. 188, Secs. 7037-7073). And article 2 of its charter stated the purpose or purposes of the corporation to be as follows:

'To construct and repair vessels of all kinds, carry on a general shipbuilding and ship-repairing business, construct and operate a marine

...