In re Octave Min. Co.
| Decision Date | 31 March 1914 |
| Docket Number | B-41. |
| Citation | 212 F. 457 |
| Parties | In re OCTAVE MINING CO. |
| Court | U.S. District Court — District of Arizona |
E. S Clark, of Prescott, Ariz., for creditors.
Kibbey Bennett & Bennett, of Phoenix, Ariz., for I. E. Huffman, a creditor claiming a lien.
On October 8, 1910, a creditors' petition was filed against the Octave Mining Company, and on November 9, 1910, answer was filed by the company, by its attorney, J. E. Russell. On November 17, 1910, order was made requiring bond of petitioning creditors. The record is silent as to the giving of the bond. On January 6, 1912, bankruptcy was confessed by said J. E. Russell as attorney for said company, and an adjudication of bankruptcy followed on the same day. On January 21, 1911, after the filing of the petition, I. E Huffman obtained a judgment against the bankrupt in the district court of Maricopa county, Ariz., and on August 23 1911, he filed and recorded the same in Yavapai county, Ariz. On September 5, 1912, I. E. Huffman filed his claim with the referee as a secured claim. On December 12, 1912, the referee rejected the claim as a secured claim and allowed it as an unsecured claim.
Notice of the action of the referee was given to Huffman's counsel and they filed in court an attempted appeal on December 18, 1912, but did not apply to the referee under General Order 27 (89 F. xi, 32 C.C.A. xxvii) for a petition to review his decision, nor did they request him to certify his action and the evidence on which he acted to the District Judge. On October 22, 1913, Huffman filed with the referee a petition for review of his order.
The trustee having filed objections to the allowance of the petition by the referee, that officer refused to certify the facts and findings without instructions from the court, and asked for instructions in the matter.
It is manifest that the mode prescribed by General Order 27 is the only manner in which the decisions of the referee may be reviewed by the judge, and that the paper filed in the court on December 18, 1912, confers no power on the court to do so.
This being so, the only matter which the court now has before it is the request of the referee as to whether he shall certify the facts and his findings for review. It is true that no definite period is fixed by General Order 27 as to the time within which an appeal must be taken from the orders of the referee, and that consequently it must be taken within a reasonable time.
What is a reasonable time in such a matter has been usually fixed by standing order in the various courts, running from 10 days to 30 days, and the question of what is a reasonable time in the absence of a stated rule has been considered in several cases, among others in the following:
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In re Faerstein
...of regularity and for the common good is clearly stated by Judge Sawtelle of this court, sitting as District Judge, in Re Octave Mining Co. (D. C.) 212 F. 457, 458, as follows: "It is manifest that the mode prescribed by General Order 27 is the only manner in which the decisions of the refe......
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In re Tomlinson & Dye, 1654.
...file his petition therefor in the manner prescribed, in default of which the application for review will be dismissed. In re Octave Mining Company (D. C. Ariz.) 212 F. 457; In re Home Discount Company (D. C. Ala.) 147 F. 538; In re Schiller (D. C. Va.) 96 F. 400; In re Marks (D. C. N. Y.) 1......
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In re Stitzer Hotel Co.
...not conform to General Order in Bankruptcy 27, which controls. In re Clark Coal & Coke Co. (D. C. W. D. Pa.) 173 F. 658; In re Octave Mining Co. (D. C. Ariz.) 212 F. 457. This order is as "Review by Judge. When a bankrupt, creditor, trustee, or other person shall desire a review by the judg......
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In re Great Western Petroleum Corporation
...of regularity and for the common good is clearly stated by Judge Sawtelle of this court, sitting as District Judge, in re Octave Mining Co. (D.C.) 212 F. 457, 458, as follows: `It is manifest that the mode prescribed by General Order 27 is the only manner in which the decisions of the refer......