Klein's Outlet v. Lipton
| Decision Date | 01 May 1950 |
| Docket Number | No. 21684.,21684. |
| Parties | KLEIN'S OUTLET, Inc., et al. v. LIPTON. |
| Court | U.S. Court of Appeals — Second Circuit |
William R. Klein, New York City, for appellants.
Arthur Morris, New York City, for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
The controlling question is whether the appeal must be dismissed because taken too late. An involuntary petition in bankruptcy was dismissed on March 2, 1948 with reservation of jurisdiction to pass on the accounting of the receiver in bankruptcy, costs and allowances, and disposition of any funds remaining in the receiver's hands. Acting under this reservation, the referee in bankruptcy made a report in July 1949. His report came before the district court for confirmation and, after argument and reargument, was confirmed, as modified, by an order entered September 22, 1949. On October 6th the appellants moved to "resettle" this order. In a memorandum dated November 4th the district judge characterized the motion as one seeking "in effect, a second reargument," and stated: An order denying the motion was entered November 16, 1949. Notice of appeal was filed on December 22, 1949.
Verbally the notice of appeal is from the order of November 16, 1949. Treating it literally would bring up for review only the denial of a resettlement of the prior order. It is obvious that such denial was correct, since in no respect did that order fail to conform to the court's decision. We shall treat the motion, as did the court below, as a motion for reargument. So considered, the appeal must be taken from the original order of September 22nd, not from the order denying the motion for reargument, since the refusal to entertain a motion for reargument, or denial of the motion, if entertained, is not the subject of appeal. Wayne United Gas Co. v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557.
The time to appeal from a judgment, order or decree of the bankruptcy court is prescribed by section 25 of the Bankruptcy Act, and the maximum time allowed is 40 days. 11 U.S.C.A. § 48. If the time began to run on September 22, 1949, the appeal taken on December 22 was obviously too late; if, however, the time did not begin to run until the motion for reargument was denied on November 16, the appeal was timely. Ever since Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251, it has been settled law that when a motion for reargument is seasonably presented, the time for appeal does not begin to run until the motion is disposed of, if the motion is "entertained" by the court. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247 and cases there cited. On the other hand, "A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal."...
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