Cromelin v. Markwalter
| Decision Date | 17 May 1950 |
| Docket Number | No. 12954.,12954. |
| Citation | 181 F.2d 948 |
| Parties | CROMELIN v. MARKWALTER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E. D. Fulcher, Augusta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and WALLER, Circuit Judges.
Appearing for himself personally as president of the debtor corporation, appellant, on June 4, 1949, filed in the reorganization proceeding two petitions. In these, reciting and referring to the proceedings previously taken in the cause, he sought to have the court "correct its past errors" by rescinding all the prior proceedings and orders,1 made in the cause since the filing of the debtor petition by himself as president on September 15, 1947.
The claims of the petitions to the relief sought were mainly that the court had never held the hearings and made the prior determinations required by the bankruptcy law in debtor proceedings; that it had never afforded petitioner the hearings required by law; and that all of its orders of sale and confirmation were erroneous and must be set aside.
On the same date, Markwalter, as successor trustee, appeared by motion to dismiss, setting up among other grounds: that no facts were alleged entitling petitioner to the relief prayed; that petitioner, as president of the debtor corporation, had appealed from the Nov. 19th order of sale and had thereafter abandoned his appeal; that petitioner is not a proper party to file such proceedings; and that he has been personally adjudged bankrupt.
The court, in an order reciting that evidence and argument were heard, sustained the motion and dismissed the petition, and petitioner has appealed.
Appellee, while not filing a motion to dismiss, claims in his brief that the order appealed from is an order denying a petition for rehearing and is, therefore, not appealable, and that the matters sought to be presented on the appeal are not reviewable here.
If the petitions are to be treated as petitions for rehearing, as the petitions were in Bowman v. Loperena, 311 U.S. 262, 61 S.Ct. 201, 85 L.Ed. 177, where, after a motion for rehearing had been considered and denied, the petitioner appealed from the judgment which he was seeking to review, we think it plain that the consideration and determination of the petitions on the merits by the judge operated to extend the time for appeal from those judgments.
However, the petitioner here did not appeal or seek to appeal from the judgments he was attacking. He appealed only from the order denying his petitions, and this order, if the petitions were only in the nature of petitions for rehearing or for new trial, was not...
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United States v. Wissahickon Tool Works
...raising the issues available under the latter rule, and the appeals as from their denials, which are appealable orders. Cromelin v. Markwalter, 5 Cir., 181 F.2d 948; Weilbacher v. J. H. Winchester & Co., 2 Cir., 197 F.2d 303, 305. None of the grounds specified in the rule, however, seem app......
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Weedon v. Gaden, 21827.
......D.C. 367, 379, 208 F.2d 18, 30 (1953). 21 Greenspahn v. Joseph E. Seagram & Sons, 186 F.2d 616, 618-619 (2d Cir. 1951); Cromelin v. Markwalter, 181 F. 2d 948, 949 (5th Cir. 1950); In re Marachowsky Stores Co., 188 F.2d 686, 689-690 (7th Cir.), cert. denied 342 U.S. 822, 72 ......
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Greenspahn v. Joseph E. Seagram & Sons
...was assumed without discussion in Ackerman v. United States, 340 U.S. 193, 71 S.Ct. 209.3 It was expressly so held in Cromelin v. Markwalter, 5 Cir., 181 F.2d 948. A long line of cases might be cited in which it has been said that an order overruling a motion to open a decree and grant a re......
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Russell v. Cunningham
...denying a 60(b) motion terminates proceedings in the District Court and therefore is a final and appealable order. Cromelin v. Markwalter, 5 Cir., 1950, 181 F.2d 948; Greenspahn v. Joseph E. Seagram & Sons, 2 Cir., 1950, 186 F.2d 616; In re Marachowsky Stores Co., 7 Cir., 1951, 188 F.2d 686......