In re McCall

• Decision Date: 01 May 1906
• Docket Number: 1,514.
• Citation: 145 F. 898
• Parties: In re McCALL, Judge.
• Court: U.S. Court of Appeals — Sixth Circuit

145 F. 898

In re McCALL, Judge.

No. 1,514.

United States Court of Appeals, Sixth Circuit.

May 1, 1906

Blair Ierson, for petitioner.

Thomas M. Scruggs and E. E. Wright, for respondent.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

Petition for a writ of mandamus to compel allowance of an appeal from an order confirming a composition between Hosmer J. Barrett a bankrupt, and his creditors. The relators are creditors who did not sign the composition.

In Adler v. Hammond, 104 F. 862, 44 C.C.A. 229, we held that an order confirming a composition was in substance and effect an order denying a discharge, inasmuch as a composition confirmed operated as a discharge, and that a creditor who had opposed the composition might appeal from its confirmation, by virtue of subsection 3 of section 25 of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 553 (U.S. Comp. St. 1901, p. 3432). The applicable part of that section to the question now for consideration provides that 'such appeal shall be taken within 10 days after the judgment appealed from has been rendered.'

The order of confirmation was made October 3, 1905. The application for an appeal was made October 21, 1905. Judge McCall denied the appeal because not within the time limit and that is the only question for decision. The transcript shows that on October 5, 1905, the relators filed a written petition praying for a rehearing in the matter of the confirmation of the composition. The effect of such a motion when filed seasonably, is to suspend the finality of the order or judgment sought to be reheard until disposed of, and the time limit for an appeal or writ of error does not begin to run until it is disposed of. Brockett et al. v Brockett, 2 How. 238; Aspen Mining Co. v. Billings, 150 U.S. 31-36, 14 Sup.Ct. 4, 37 L.Ed. 986; Northern Pacific R.R. v. Holmes, 155 U.S. 137, 138, 15 Sup.Ct. 28, 39 L.Ed. 99; Kingman v. Western Manf'g. Co., 170 U.S. 675, 18 Sup.Ct. 786, 42 L.Ed. 1192.

The journal entry showing the disposition made of this application for a rehearing, as found in that part of the transcript made an exhibit to the petition of relators, is in these words and figures:

'In the District Court of the United States for the Western District of Tennessee.

'Monday, October 10, 1905.

'In the Matter of Hosmer J. Barrett, in Bankruptcy.

'This cause came on this day for orders upon consideration whereof it is ordered, adjudged and decreed that said petition be and the same is hereby dismissed at the cost of C. L. Byrd & Co., against whom execution will issue. The court finds and adjudges that all of the matters and things set up in said petition to rehear were presented and considered upon the hearing.

'Enter this order. John E. McCall, J. Oct. 16th, 1905.

'Filed October 10, 1905. A. G. Matthews, Clerk.'

If, therefore, the application did come on to be heard 'on this day,' and was then denied, as recited in the entry, and if that entry appears upon the journal of the court for Monday, October 10, 1905, as the record shows, an application for an appeal on October 21st was too late and properly denied. To meet this difficulty relators aver in their petition that in fact this entry was not spread upon the journal of the court until October 21st, although it appears to be a proceeding of October 10th. To contradict this entry they also rely upon an entry at the foot of the order of October 3d, confirming the composition in these words:

'Ordered that court stand adjourned until Oct. 21st. Filed Oct. 3, 1905.

'A. G. Matthews, Clerk.'

They also exhibit with their petition a communication taken from the file of the case, and so certified by the clerk, from respondent to his clerk, in these words:

'United States District Court, Western District of Tennessee, at Memphis.

'Lexington, Tenn., Oct. 10, 1905.

'A. G. Matthews, Esq., Memphis, Tenn.-- Dear Sir: I enclose you herewith the papers in the case of Hosmer J. Barrett, in bankruptcy which is before me upon petition of C. L. Byrd & Co., to set aside a former order confirming the composition, and to rehear. You will please prepare an order overruling the motion to set aside and rehear, and inform Mr. Blair Pierson of my action in the case.

'Very respectfully,

John E. McCall.

'Filed Oct. 10, 1905. A. G. Matthews, Clerk.'

Relators further aver that on October 20th their solicitor asked to see Judge McCall's order denying a rehearing, and was shown an order in the terms of the entry upon the journal for October 10th, which contained an indorsement by the clerk 'Filed Oct. 10, 1905,' and the direction, 'Enter this order. John E. McCall, judge. Cot. 16, 1905,' and that no entry of this order had been made upon the journal, and that in fact none was made until October 21st. If we are free to go behind the record entry purporting to be the proceedings of October 10th, and inquire as to when Judge McCall rendered his decision denying a rehearing, it is clearly shown that he denied a rehearing upon October 10th, as recited by the entry upon the records of his court. Upon that day he, in writing, directed an order denying a rehearing, and this communication was marked filed by the clerk as of that date, and upon the same date the clerk drew the simple order denying the application of relators and placed upon it the file mark denying the application of relators and placed upon it the file mark of the court as an order made and filed October 10th. So if the matter is open for evidence it is probably true that the minutes of the proceedings of the court upon October 10th were not journalized until October 21st.

The time limit for a review by appeal, or writ of error, under section 1008, Rev. St. (U.S. Comp. St. 1901, p. 715), began to run from the time of the 'entry of such judgment, decree or order. ' Under section 11 of the Courts of Appeal Act of 1891 (Act March 3, 1891, c. 517, 26 Stat. 829 (U.S. Comp. St. 1901, p. 551)), the provision is:

'That no appeal or writ of error by which any order, judgment or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out, except within six months after the entry of the order, judgment, or decree sought to be reviewed.'

In Silsby v. Foote, 20 How. 290, 15 L.Ed. 822, it seems to have been ruled that the time limit did not begin to run until the decree had been signed by the judge. But in Board of Commerce v. Gorman, 19 Wall. 662, 22 L.Ed. 226, it was held that the date of the entry governs, whether signed or not, when the decree was of simple character and required no 'settling' by the judge. In Polleys v. Black River Co., 113 U.S. 81, 5 Sup.Ct. 369, 28 L.Ed. 938, it was ruled that the time limit upon error proceedings begins to run only from the date of the 'entry' of the judgment, or decree, or order upon the records of the court. See, also, Marks v. Northern Pacific R. R. Co., 76 F. 941, 22 C.C.A. 630, Providence Rubber Co. v. Goodyear, 6 Wall. 153, 18 L.Ed. 762; and Credit Co. v. Arkansas Central R. Co., 128 U.S. 258, 9 Sup.Ct. 107, 32 L.Ed. 448.

The provisions of subsection 3 of section 25, in regard to special class of appeals there allowed, departs from the terms found in the judiciary act of 1787, as carried into section 1008, Rev.St. and as repeated with respect to the time limit on appeals to this court. In the acts referred to the limit began to run from 'the entry of the judgment, decree or order. ' And this, as we have seen, was construed as referring to an entry upon the records of the court. The time limit upon the appeal from a judgment allowing or denying a discharge is 10 days and the language of the provision is 'that such appeal shall be taken within ten days after the judgment appealed from has been rendered.'

Statutes which provide that writs of error or appeal shall be taken within a given time from the 'rendition' of the judgment or decree have been generally construed as stating the time limit from the date of the decision of the court, and not from the date of its subsequent entry in the journal, or signing by the judge. See 2 Ency.Pl.&Pr. p. 249 et seq., where the cases are collected. There are, however, some Minnesota cases which hold that a decree or judgment is not 'rendered' within the meaning of such statutes until entered. Humphrey v. Havens, 9 Minn. 318 (Gil. 301); Exley v. Berryhill, 36 Minn. 117, 30 N.W. 436, which overrule certain earlier cases holding otherwise. It is, however, unnecessary to decide whether the limitation of 10 days upon such appeal begins from the decision of the matter, or from the entry of the decision upon the records of the court, inasmuch as in any case the application for appeal in this case was made more than 10 days after the order denying a rehearing was 'entered,' unless the recital of the record can be now contradicted.

It must be conceded that, if a time limit upon such appeals does not begin to run until the actual entry of the judgment appealed from the actual date of the entry of a judgment would be the date of the entry of the nunc pro tunc order. U.S. v Gomez, 1 Wall. 690, 17 L.Ed. 677; Rubber Co. v. Goodyear, 6 Wall. 153-156, 18 L.Ed. 762; Credit Co. v. Ark. Central Ry. Co., 128 U.S. 258, 9 Sup.Ct. 107, 32 L.Ed. 448. But the entry denying relators' motion for a rehearing is not a nunc pro tunc order; that...