In re Hurley Mercantile Co., 6254.

• Decision Date: 11 March 1932
• Docket Number: No. 6254.,6254.
• Citation: 56 F.2d 1023
• Parties: In re HURLEY MERCANTILE CO. et al. COPPARD v. ATASCOSA COUNTY STATE BANK OF JOURDANTON, TEX.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F.2d 1023 (1932)

In re HURLEY MERCANTILE CO. et al. COPPARD v. ATASCOSA COUNTY STATE BANK OF JOURDANTON, TEX.

No. 6254.

Circuit Court of Appeals, Fifth Circuit.

March 11, 1932.

Henry A. Hirshberg, Howell J. Mueller, and Edward A. Sibley, all of San Antonio, Tex., for appellant.

Frank H. Booth, of San Antonio, Tex., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Hurley Mercantile Company, a partnership, became a voluntary bankrupt December 25, 1925, and thereafter the four partners, C. C. Hurley, W. M. Hurley, M. C. Hurley, and Felix M. Hurley, were adjudicated voluntary bankrupts in the same court, but each on a separate petition. M. Coppard was made trustee in each case. On April 27, 1931, he petitioned the court for an order of final distribution covering all the cases, having on hand in the partnership estate $3,311.84, with proven unsecured debts of $22,415.43 which included a note of $2,533.33 proven by Atascosa State Bank; in the estate of M. C. Hurley $2,939.09, with a proven claim of $2,533.33 in favor of said bank; and in the estate of C. C. Hurley $1,832.41, with proven claims of $12,729.68, including one of $2,533.33 proven by said bank. The bank in fact had but one note signed in the firm name only, but had proven it against each of the estates. The referee held that this debt was not entitled to a dividend from the C. C. Hurley estate along with his individual creditors, and was not entitled to anything as an individual debt of M. C. Hurley, but that the surplus in that estate should be transferred and added to the partnership estate for division among the partnership creditors including the bank. The District Judge reversed this ruling, holding the bank entitled to claim in all three estates and in consequence to have payment in full from the estate of M. C. Hurley. The trustee appealed under Bankr. Act, § 24 b, as amended by Act May 27, 1926, § 9 (11 US CA § 47 (b).

The bank has moved to dismiss the appeal because not taken in time. The order of the District Judge begins with a recital that the matter came on for hearing on October 24, 1931, but is not otherwise dated. It is indorsed by the clerk as filed November 6, 1931. It does not appear whether the judge took the matter under advisement until the latter date, or why the judgment was not sooner filed. The petition to this court for superintendence and revision was filed November 24, 1931. It refers to the judgment as rendered October 24th and filed for entry November 6th. Bankr. Act, § 24 c, as amended by Act May 27, 1926, § 9 (11 USCA § 47 (c), requires that such appeals be taken "within thirty days from the time the judgment is rendered or entered." There being thirty-one days in October, November 24th is not within thirty days from October 24th, but is within thirty days from the filing date, November 6th. Strictly speaking, a judgment is rendered when finally published by the judge orally or in writing according to the practice of the court, and is entered when spread by the clerk upon the record or noted and filed among the papers of the court, according to its practice. 34 C. J. "Judgments," § 175; 15 R. C. L. "Judgments," § 11. Usually a judgment is considered as final and perfect so as to be appealable only when entered by the clerk. 34 C. J. "Judgments," § 182; 3 C. J. "Appeal and Error," § 1054. No transcript could be obtained of an unfiled written judgment. The statutory language fixing the time is of course important, but in the scheme of federal appeals we believe the statutes have used the terms "rendition" and "entry" interchangeably rather than with technical accuracy. Rev. St. § 1008 (28 USCA § 350 note), fixed the time for writ of error or appeal as "within two years after the entry of such judgment." But Rev. St. § 1007 (28 USCA § 874), dealing with supersedeas, required action "within sixty days * * * after the rendering of the judgment complained of." Rev. St. § 1009, required appeal in prize cases to be taken "within thirty days after the rendering of the decree appealed from." The writ of error in behalf of the United States to review the overruling of a demurrer to an indictment was to be taken "within thirty days after the * * * judgment has been rendered." 18 USCA § 682. Appeals to the Circuit Court of Appeals must be applied for "within three months after the entry of such judgment." 28 USCA § 230. Like language governs appeals from orders touching injunctions and receivers under 28 USCA § 227. Under the Bankruptcy Act (section 25 (a), by the amendment of May 27, 1926 (section 10), appeals under 11 USCA § 48 (a), must be taken "within thirty days after the judgment appealed from has been rendered"; but an appeal under section 47 (c) as above stated "within thirty days after the judgment * * * has been rendered or entered." We think Congress did not intend to establish a varying standard for beginning to count the time for appeal, but intended that the time should run only from the perfecting of the judgment or order as final by its filing with the clerk. Such was the ruling made touching appeals to the Supreme Court in Seymour v. Freer, 5 Wall. 822, 18 L. Ed. 564; Rubber Co. v. Goodyear, 6 Wall. 153, 18 L. Ed. 762; Polleys v. Black River Co., 113 U. S. 81, 5 S. Ct. 369, 28 L. Ed. 938. In a statute relating to judgments reviewable in the Supreme Court, the term "rendered" was held to refer to such judgments as had attained appealable perfection. Yznaga del Valle v. Harrison, 93 U. S. 233, 23 L. Ed. 892. General Order in Bankruptcy XXXVI (11 US CA § 53) fixed the time for appeals in bankruptcy as "within thirty days after the judgment or decree," and this was said to mean thirty days after its entry. Conboy v. First National Bank, 203 U. S. 141, 27 S....