Cunningham v. German Ins. Bank

• Decision Date: 21 May 1900
• Citation: 103 F. 932
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: CUNNINGHAM et al. v. GERMAN INS. BANK.

103 F. 932

CUNNINGHAM et al. v. GERMAN INS. BANK.

United States Court of Appeals, Sixth Circuit.

May 21, 1900

W. W. &amp J. R. Watts, for appellants.

O. A Wehle, for appellee.

Before TAFT, LURTON, and DAY, Circuit Judges.

LURTON Circuit Judge.

Scanlon & Co., a corporation of the state of Kentucky, is an involuntary bankrupt. Proceedings for the purpose of distributing its assets are pending in the bankruptcy court for the district of Kentucky. This is an appeal, under section 25 of the bankruptcy act of 1898, from a judgment allowing a claim in favor of the appellee, the German Insurance Bank, for $35,000, and holding same entitled to priority under a mortgage made by the bankrupt to secure same. The matter comes on now to be heard upon several motions made by appellee: First, to dismiss the appeal because the transcript of the record filed by the appellant is not a properly certified and full transcript of the record in the district court; second, to dismiss the appeal in so far as it is thereby sought to review the judgment of the court below according to appellee the benefit of the security for his debt provided by a mortgage; third, to compel the appellant to complete the transcript by filing a transcript of certain documents depositions, and other proofs averred to be necessary to the hearing of the appeal if the court shall deny the motion to dismiss same.

1. The defect in the certified transcript pointed out by counsel for the appellee is that the clerk has neither certified that it is a transcript of the entire record, nor of such parts as he has been directed by court or counsel to certify, but that it is a 'true and correct transcript of the entire record nor of such parts as he has been directed by court or counsel to certify, but that it is a 'true and correct transcript' of certain papers, orders, and proofs, which he recites. Counsel insist that, as the transcript does not purport to be a full record, nor a record composed of such parts of the record as had been agreed upon by stipulation or directed by the court, it is not a 'legal record,' and that the appeal should be dismissed upon the authority of Meyer v. Implement Co., decided by the circuit court of appeals for the Fifth circuit, and reported in 52 U.S.App. 478, 29 C.C.A. 465, and 85 F. 874. In Railroad Co. v. Schutte, 100 U.S. 644, 25 L.Ed. 605, we find authority for a less rigorous rule. The transcript in that case had been made up of such papers and evidence as the appellant deemed necessary for the hearing of the matter involved by the appeal. The clerk certified that it was a transcript of such parts of the record as were 'necessary on the hearing of the appeal prayed and allowed in said cause. ' It was urged by the appellee that much that was important had been omitted, and the court was moved to dismiss the appeal because no properly certified transcript had been filed. This the court declined to do, but ordered 'that the appellees file with the clerk of this court, and with the counsel for the appellant, on or before the 1st day of February next, a statement of the papers, documents, and proofs used on the hearing below, and omitted in the transcript now on file; which they deem necessary for the proper presentation of the cause; and that unless the appellant shall, on or before the 15th day of March, file in this court, as part of the record, copies of such papers, duly certified by the clerk of the circuit court of his deputy, under the seal of the court, this appeal be dismissed. If in this way unnecessary papers are brought up, we will, on application, make such order in respect to costs as may, under the circumstances, be proper. ' It is desirable that a transcript sent to this court upon appeal shall contain no immaterial matter, and the third paragraph of the fourteenth rule of this court prescribes that 'no case will be heard until a complete record, containing in itself, and not by reference, all the papers, exhibits, depositions and other proceedings, which are necessary to the hearing in this court shall be filed. ' It is manifest that neither the counsel for the appellant nor the clerk can conclusively determine what parts are 'necessary to the hearing in this court. ' When, therefore, the certificate does not show the record is a full and complete record of the entire proceedings, it ought to appear, by stipulation or otherwise, that it does include all that is necessary to a determination of the matters involved by...