Duncan v. Landis

• Decision Date: 07 February 1901
• Docket Number: 8.
• Citation: 106 F. 839
• Parties: DUNCAN et al. v. LANDIS et al.
• Court: U.S. Court of Appeals — Third Circuit

106 F. 839

DUNCAN et al. v. LANDIS et al.

No. 8.

United States Court of Appeals, Third Circuit.

February 7, 1901

[Copyrighted Material Omitted]

Clarence L. Peaslee and T. M. B. Hicks, for appellant and plaintiffs in error.

H. T Ames, for appellees and defendants in error.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

GRAY Circuit Judge.

In the court below an issue was tried by a jury to determine whether Sallie E. Duncan, the appellant, who is one of the plaintiffs in error, had committed a certain act of bankruptcy charged against her.

At the opening of the argument in this court a motion was made by the appellees and defendants in error to quash the writs of error. This was argued at great length and with much ingenuity by counsel for appellees; the substantive proposition of the argument being that while admitting that the rulings of a trial court in a jury trial cannot be reviewed in an appellate court upon appeal, but can only be reached by a writ of error, no writ of error in such a case as this could be sued out except pursuant to some express authority of an act of congress; the contention being that neither the act of congress of 1898, creating the uniform system of bankruptcy, nor the act of March 3, 1891 establishing and conferring jurisdiction on the court of appeals, had authorized a writ of error in the case of a jury trial as provided for by the bankrupt act. The jury trial in this case was asked for and ordered under the provisions of section 19 of the bankrupt act, which is as follows: 'Sec. 19. Jury Trials. (a) A person against whom an involuntary petition has been filed, shall be entitled to have a trial by jury, in respect to the question of his insolvency, except as herein otherwise provided, and any act of bankruptcy alleged in such petition to have been committed, upon filing a written application therefor at or before the time within which an answer may be filed. If such application is not filed within such time, a trial by a jury shall be deemed to have been waived. (b) If a jury is not in attendance upon the court, one may be specially summoned for the trial, or the case may be postponed, or, if the case is pending in one of the district courts within the jurisdiction of a circuit court of the United States, it may be certified for trial to the circuit court sitting at the same place, or by consent of parties, when sitting at any other place in the same district, if such circuit court has or is to have a jury first in attendance. (c) The right to submit matters in controversy, or an alleged offense under this act, to a jury shall be determined and enjoyed, except as provided by this act, according to the United States laws now in force or such as may hereafter be enacted in relation to trials by jury.'

The issue to be determined by the jury was made by the petition of the creditors charging the alleged bankrupt with certain acts of bankruptcy, and by the denial thereof on the part of the alleged bankrupt, and by the answer and plea of Theodore H. Gehly, an execution creditor, to the said petition. The case was tried by a jury in the court below, and exceptions taken and bills sealed both as to the admission of evidence and as to the instructions to the jury. This trial by jury was a matter of right, and could not be denied if seasonably demanded. The verdict of the jury was conclusive of the issue of fact, and binding upon the court. Final judgment must be entered upon such verdict, either adjudging or refusing to adjudge the defendant to be a bankrupt. The trial, therefore, proceeded according to the course of the common law.

Section 6, cl. 1, of the act to establish circuit courts of appeals (26 Stat. 828), provides as follows:

'Sec. 6. The circuit courts of appeals established by this act shall exercise appellate jurisdiction to review, by appeal or writ of error, final decisions in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.'

The language here used indicates an intention to extend the reviewing authority of the court of appeals widely enough to include all final decisions in the district courts not otherwise provided for by law; and the writ of error referred to in this provision is applicable alike to judgments of the district court and of the circuit court, where such a writ is necessary and appropriate to invoke the reviewing authority of the appellate court. In addition to this general and comprehensive provision of the statute establishing the circuit court of appeals, which we think sufficiently warrants the writ of error in this case, the bankrupt act of 1898 provides, in section 24, c. 4, as follows:

'Sec. 24. Jurisdiction of Appellate Courts. (1) The supreme court of the United States, the circuit courts of appeals of the United States, and the supreme courts of the territories, in vacation in chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The supreme court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia.'

We perceive nothing in the provisions of this section inconsistent with or which supersedes the provisions of section 6, cl. 1 of the act establishing circuit courts of appeals, above referred to. The language of the section conferring upon the circuit courts of appeal 'appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy over which they have appellate jurisdiction in other cases,' is broad and applicable to all 'controversies arising in bankruptcy proceedings,' etc. If there could have been any doubt in construing section 6 of the judiciary act of 1891, above quoted, that 'final decisions in the district court' included final decisions in such a court when acting as a court of bankruptcy, it has been removed by section 24 of the bankrupt act, as above quoted. For this purpose, among others, this provision seems to have been inserted. At all events, there can be no doubt now, in view of this provision, that inasmuch as the circuit courts of appeal have appellate jurisdiction over district courts in other cases, so, also, they have the same jurisdiction over those courts when acting as courts of the bankruptcy. That a jury trial has been ordered under the provisions of section 19 of the bankrupt act does not remove the controversy from this appellate jurisdiction. Section 24 does not state, nor was it necessary to state, how the appellate jurisdiction provide ed for should be invoked. The practice of the courts, but especially the act of congress establishing the court of appeals, already referred to, had designated 'writs of error' and 'appeals,' as those terms are used and understood in our jurisprudence, as the appropriate methods for invoking the appellate jurisdiction. The form, scope, and peculiar function of these two several methods of exercising

appellate jurisdiction are well understood, and their peculiar

and separate functions clearly established by the decisions and practice of the courts. This practice has so shaped itself that the rulings of a trial court in a jury trial can only be reviewed in an appellate court by a writ of error, while an appeal is peculiarly fitted to equity proceedings, where it brings for review to the appellate court both the law and the facts. On the other hand, where the right to trial by jury exists and has been invoked, neither the appellate court nor the court below can review the facts, but can only control in matters of law, which a writ of error is peculiarly fitted to raise in an appellate court. Indeed, the provision of the constitution that 'no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the common law,' is decisive on this point; and since the case of Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732, no question can be made but that a case as the present, in which there has been a trial by jury, as authorized by section 19 of the bankrupt act, is a trial according to the course of the common law, and cannot be reviewed by what is technically known as an 'appeal,' but must be the subject of a writ of error, as that writ was understood and used at common law. Insurance Co. v. Comstock, 16 Wall. 258, 21 L.Ed. 493. In the case of Parsons v. Bedford, supra, Story, J., in delivering the opinion of the court, after discussing it the scope of the first clause of the seventh amendment to the constitution, proceeds as follows:

'But the other clause of the amendment is still more important, and we read it as a substantial and independent clause: 'No fact tried by a jury shall be otherwise re-examinable, in any court of the United States, than according to the rules of the common law.' This is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner. The only modes known to the common law to re-examine such facts are the granting of a new trial by the court when the issue was tried or to which the record was properly returnable, or the award of a venire facias de novo by an appellate court for some, error of law which intervened in the proceedings. The judiciary act of 1789, c. 20, Sec. 17, has given to all the courts of the United States 'power to grant new trials in cases where there has been a trial by jury for reasons for which new trials have

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