In re Inter-City Trust, 1687.

• Decision Date: 31 January 1924
• Docket Number: 1687.
• Citation: 295 F. 495
• Parties: In re INTER-CITY TRUST. Petition of B. W. NEAL, Inc., et al.
• Court: U.S. Court of Appeals — First Circuit

295 F. 495

In re INTER-CITY TRUST. Petition of B. W. NEAL, Inc., et al.

No. 1687.

United States Court of Appeals, First Circuit.

January 31, 1924

Ira Dudley Farquhar, of Brookline, Mass., for petitioners.

Joseph B. Jacobs, of Boston, Mass., for respondents.

Before JOHNSON and ANDERSON, Circuit Judges, and PETERS, District judge.

ANDERSON Circuit Judge.

This petition to revise presents no question of law for our determination. It is unduly voluminous and contains a mass of utterly irrelevant matter.

Four alleged (for present purposes we assume actual) creditors of the Inter-City Trust filed in this court, on December 3 1923, this petition, under section 24b of the Bankruptcy Act (Comp. St. Sec. 9608), naming as respondents the creditors who filed the original petition in bankruptcy on December 1 1922. The trustees are not made parties. The petition involves two main contentions: (1) That the bankruptcy court had no jurisdiction to adjudicate the Inter-City Trust a bankrupt; (2) that the sale of the property as perishable without formal notice to the creditors, was wrong. Neither question is open on this record. Briefly, as to the controlling facts:

In the petition filed by the respondents herein, on December 1, 1922, it was alleged that the Inter-City Trust was 'a voluntary association and unincorporated company,' that had committed an act of bankruptcy within four months. There was no lack of jurisdictional allegation. Four creditors, not parties to these proceedings, appeared and challenged the jurisdiction on the ground that the Inter-City Trust was not 'a voluntary association and unincorporated company' within the meaning of the act. After various proceedings-- not material except as hereinafter noted-- on June 5, 1923, the answers of the opposing creditors were withdrawn; the Inter-City Trust had filed no answer; adjudication was then made as of course on June 6, 1923. It is settled that adjudication can be reviewed only by appeal. In re Loving, 224 U.S. 183, 32 Sup.Ct. 446, 56 L.Ed. 725; 1 Remington (2d Ed.) Sec. 2893, and cases cited.

The petitioners contend that two creditors should have had a status, as answering and opposing creditors, to take such appeal, and that the petitioners may now avail themselves of errors alleged to have been made in depriving those creditors of such status, on this petition to revise. The first of such creditors is Etherington, whose proceedings are set forth at length in this record. Etherington filed on February 26, 1923, a motion to dismiss on the ground that the Inter-City Trust was not within the scope of the Bankruptcy Act. This pleading was, on the motion of the petitioning creditors, struck from the record. Etherington is a stranger to these proceedings. His rights, if any, cannot be brought before this court by other creditors.

The other creditor is Frank W. Palmer, one of the petitioners. He also, on May 22, 1923, sought to intervene, and moved to dismiss the petition for lack of jurisdiction. On May 25, 1923, leave to file his pleadings was denied by the District Court.

If we assume, without deciding, that under section 59f of the Bankruptcy Act (Comp. St. Sec. 9643) Palmer may have had a right of review by this court (but see 1 Remington (2d Ed.) Sec. 319; In re Coal Exchange (C.C.A.) 280 F. 638, 646, certiorari denied 259 U.S. 584, 42 Sup.Ct. 587, 66 L.Ed. 1075; In re Connecticut Brass, etc., Corp. (D.C.) 257 F. 445; In re Herlehy Co. (D.C.) 247 F. 369; In re Mutual Mercantile Agency (D.C.) 111 F. 152), it cannot be reviewed on this petition, for it was not brought until December 3, 1923, more than six months after the entry of the order sought to be reviewed.

See In re Worcester, 102 F. 808, 42 C.C.A. 637; Kenova Trust Co. v. Graham, 135 F. 717, 721, 68 C.C.A. 355; Blanchard v. Ammons, 183 F. 556, 558, 559, 106 C.C.A. 102; 3 Remington (2d Ed.) Secs. 2992-2999, and cases cited.

Emphasis is lent to the conclusion that the petition is too late by the fact that in the Second Circuit, under rule 38 (150 F. liv), such petitions to revise must be brought within 10 days after the entry of the order sought to be reviewed. In re Vanoscope Co., 233 F. 53, 47 C.C.A. 123; In re Armann, 247 F. 483, 159 C.C.A. 537.

The other contention is that there was error in ordering the sale of heavily mortgaged unproductive real estate as perishable property. No question of law as to the sale proceedings is presented...