In re Pramer, 8038.
| Decision Date | 09 December 1942 |
| Docket Number | No. 8038.,8038. |
| Citation | 131 F.2d 733 |
| Parties | In re PRAMER. PRAMER v. SHARON STATE BANK et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James J. McCauley, of Harvard, Ill., and Suel O. Arnold, of Milwaukee, Wis., for appellant.
Wm. A. Sheldon, of Elkhorn, Wis., for appellee.
Before EVANS, MAJOR and KERNER, Circuit Judges.
This is an appeal from an order of the District Court, entered March 20, 1942, confirming an order of a conciliation commissioner in a proceeding under Section 75 of the Bankruptcy Act, section 203, title 11, U.S.C.A. The allowance of a large number of secured claims against the bankrupt estate is the only portion of the commissioner's order now under attack.
Appellant (hereinafter referred to as the bankrupt), on February 15, 1938, filed a petition under the Act for composition and extension. The bankrupt is the widow and sole heir at law of Ralph Pramer, who died December 26, 1934. Ralph Pramer was the son and sole heir at law of Ellen Pramer, who died December 9, 1934. Ellen Pramer, at the time of her death, owned real estate, chiefly farm land, in the state of Illinois, which at her death descended to Ralph Pramer. The latter, at the time of his death, in addition to the real estate inherited from his mother, owned forty acres of farm land in the state of Wisconsin. The bankrupt, as well as her husband and mother-in-law, was a resident of Walworth County, Wisconsin. Domiciliary administration was commenced within three years after death, for the estates of Ralph Pramer and Ellen Pramer, before the probate court of Walworth County, Wisconsin. Ancillary administration for each of said estates was commenced in McHenry County, Illinois, where the real estate of Ellen Pramer was located.
Some of the claims included in the subject of this appeal were predicated upon notes secured by real estate mortgages on the Illinois real estate. Some were predicated upon unsecured notes and other forms of contractual indebtedness. They were all filed and allowed, either in the county court of Wisconsin or the probate court of Illinois, in the estates of Ralph Pramer and Ellen Pramer, deceased.
Appellant states the contested issue thus: "Were claims against the estates of Ellen Pramer, deceased, and Ralph Pramer, deceased, properly allowed as secured claims against the bankrupt?"
It is the contention of the appellant, as we understand it, that because the claims allowed by the commissioner (and approved by the court) were not the personal debts of the bankrupt they could not be allowed as secured claims in the instant bankruptcy proceeding; in other words, that the right of the creditors to assert their claims was limited by the relief provided by Wisconsin and Illinois law for proving and obtaining liens against the real estate of a deceased debtor.
We are met in the beginning with appellees' contention that the appeal should be dismissed for two reasons: (1) failure of appellant to cause the appeal to be docketed within forty days after the filing of the notice of appeal in the office of the clerk of the United States District Court; and (2) the bankrupt has no interest in the order appealed from (that is, allowing claims), and is, therefore, not a proper party.
The notice of appeal was filed April 16, 1942, and admittedly the record was not filed in this court within forty days, as required by rule 73(g) of the Federal Rules of Civil Procedure, 28 U. S.C.A. following section 723c. However, on May 18, 1942, and within the forty-day period, the District Court entered an order extending the time for docketing said appeal to the 30th day of June, 1942. Appellees contend that the latter order was ineffective to extend the time, for the reason that the motion on which the order was predicated was not sworn to and was made ex parte. Reliance is placed upon miscellaneous rule 29(5) of this Court, "No extensions of time for taking any action under these rules should be granted, except upon verified petition or upon motion supported by affidavit." We think this rule is without application to the instant situation for the reason that rule 11(1) provides, "The time for docketing may be enlarged as provided by rule 73(g) of the Federal Rules of Civil Procedure." The latter rule states: "The District Court in its discretion and with or without motion or notice may extend the time for filing the record on appeal and docketing the action." Certainly if the court has the authority, as it no doubt has, to extend the time without motion, it has the authority to do so upon an ex parte written motion as was done in the instant case.
The second ground urged for dismissal is dependent upon facts so closely related to those upon which the validity of the order under attack must be determined as not to require detailed consideration. Appellees urge that the general rule in bankruptcy precludes an appeal by the bankrupt from an order of the referee allowing claims. Undoubtedly, this is the general rule, for the reason that the trustee takes title to the bankrupt's property and the bankrupt, being insolvent, has no interest in such an order. It is urged that the bankrupt in the instant case is likewise without an appealable interest. Appellees in their brief state that the order appealed from was entered "at the terminal stage of a bankruptcy proceeding." Our experience...
To continue reading
Request your trial
-
Kapp v. Naturelle, Inc.
...among his creditors and is held not to be a party in interest. In re Woodmar Realty Co., 241 F.2d 768 (7th Cir. 1957); In re Pramer, 131 F.2d 733 (7th Cir. 1942); Gregg Grain Co. v. Walker Grain Co., 285 F. 156 (5th Cir. 1922), Cert. denied, 262 U.S. 746, 43 S.Ct. 522, 67 L.Ed. 1212 (1923).......
-
In re Roberts
...among his creditors and is held not to be a party in interest. In re Woodmar Realty Co., 241 F.2d 768 (7th Cir. 1957); In re Pramer, 131 F.2d 733 (7th Cir. 1942); Gregg Grain Co. v. Walker Grain Co., 285 F. 156 (5th Cir. 1922), cert. denied, 262 U.S. 746, 43 S.Ct. 522, 67 L.Ed. 1212 (1923).......
-
In re Woodmar Realty Company
...among his creditors, and the right of the bankrupt to object to the allowance of claims has been confined to exceptional cases. In re Pramer, 7 Cir., 131 F.2d 733; Gregg Grain Co. v. Walker Grain Co., 5 Cir., 285 F. 156, certiorari denied 262 U.S. 746, 43 S.Ct. 522, 67 L.Ed. 1212; In re Sol......
-
Caldwell v. Armstrong, 7768.
...364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224. 3 See Hartman Corp. of America v. United States, 8 Cir., 304 F.2d 429, 430. 4 See In re Pramer, 7 Cir., 131 F.2d 733, 735. 5 The provision that liability for alimony is not dischargeable in bankruptcy, 11 U.S.C. § 35, sub. a(2), has no application ......