In re Holmes

• Citation: 142 F. 391
• Decision Date: 25 October 1905
• Docket Number: 47.
• Parties: In re HOLMES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

142 F. 391

In re HOLMES.

No. 47.

United States Court of Appeals, Eighth Circuit.

October 25, 1905

(Syllabus by the Court.)

The right of appeal and the right of superintendence and revision in matter of law only under Bankr. Act July 1, 1898, c. 541, Sec. 24b, 30 Stat. 553 (U.S. Comp. St. 1901, 3432) are not exclusive, but cumulative. In a proper case an aggrieved party has the option to review the controverted facts and the law which condition an order or judgment by appeal, or to review the law only by petition for revision.

The time within which a petition for the revision in matter of law, under Bankr. Act July 1, 1898, c. 541, Sec. 24b, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432), of an appealable order or judgment may be presented, is limited by the time fixed by the bankruptcy law for the appeal.

Alva B. Adams, for petitioner.

Matthew J. Galligan, for respondent.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District judges.

SANBORN, Circuit Judge.

On October 19, 1904, George Holmes, the trustee of the estate of the Colorado Foundry Company, a bankrupt, filed a petition in this court to revise in matter of law an order of the court below made on April 15, 1904, which allowed to one Sells, a mortgagee of the bankrupt, a preferential claim of $694.56 and an unpreferred claim of $705.44 and interest. The trustee challenged the allowance of the preference alone. The mortgagee has made a motion to dismiss the petition, because an appeal from the order which allowed his preference would lie, because more than six months elapsed between the making of the order and the filing of the petition, and because a consideration of evidence and a determination of controverted facts is essential to a review of the ruling below.

The existence of the debt is conceded. The only question which the case presents is whether or not the mortgagee is entitled to his preference by virtue of his chattel mortgage. This is a controversy over the title and property of the estate of the bankrupt between the trustee and the mortgagee, a party adverse to the trustee and the bankrupt, of which this court is given appellate jurisdiction by Bankr. Act July 1, 1898, c. 541, Sec. 24a, 30 Stat. 553, U.S. Comp. St. 1901, pp. 3431, 3432; Dodge v. Norlin, 133 F. 363, 366-369, 66 C.C.A. 425, 427-429. In the second year after the act of 1898 was passed this court decided that a petition to revise in matter of law under section 24b an appealable order or judgment could not be maintained, and numerous decisions have since [142 F. 392] been rendered to the effect that the right of appeal and the right of revision are exclusive each of the other. In re Kuffler, 127 F. 125, 61 C.C.A. 259; In re Worcester County, 102 F. 808, 811, 42 C.C.A. 637, 641; First Nat. Bank v. State Nat. Bank, 131 F. 430, 433, 65 C.C.A. 414, 417; In re Friend, 134 F. 778, 67 C.C.A. 500, 503; In re Mueller, 135 F. 715, 68 C.C.A. 349. This theory, however, has resulted in such contrariety of decision relative to the proper method of review of specific orders and such confusion and uncertainty in the practice that it has become necessary for lawyers in many instances to take an appeal and file a petition for revision in the same case in order to be sure to obtain a review of the ruling challenged. In re Worcester County, 102 F. 808, 811, 42 C.C.A. 637, 641. Thus it was held in the cases of In re Worcester County, 102 F. 808, 814, 42 C.C.A. 637, 643, and In re Rouse Hazard Co., 91 F. 96, 33 C.C.A. 356, that an order which allowed a creditor a preference was reviewable by a petition for revision and not by appeal, while in Cunningham v. German Ins. Bank, 103 F. 932, 935, 43 C.C.A. 377, 380, In re Roche, 101 F. 956, 42 C.C.A. 115, and In re Soudan Mfg. Co., 113 F. 804, 51 C.C.A. 476, the opposite conclusion was reached.

Moreover, under...