Rosenberg v. Heffron
| Decision Date | 02 October 1942 |
| Docket Number | No. 10174.,10174. |
| Citation | 131 F.2d 80 |
| Parties | ROSENBERG v. HEFFRON et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward Schary, of San Francisco, Cal., for appellant.
Thomas S. Tobin, of Los Angeles, Cal., for appellee Heffron.
Wm. Ellis Lady and Webster Hazlehurst, both of Los Angeles, Cal., for appellee Kate A. Bullard.
Halverson & Halverson, of Los Angeles, Cal., for appellee Lloyd Vaughn.
Before GARRECHT, DENMAN, and MATHEWS, Circuit Judges.
Jennie Rosenberg was adjudged a bankrupt on March 21, 1939. An order of reference was made on that date. A trustee was appointed on January 14, 1941. Thereafter the trustee brought an action against Lloyd Vaughn and the bankrupt in a State court of California to recover for the estate certain property the title to which stood in Vaughn's name. Vaughn denied that the trustee had any right, title or interest in or to the property. However, on April 16, 1941, he offered to compromise the controversy between himself and the trustee by paying the trustee $5,000 for whatever right, title or interest the trustee had. The trustee petitioned the bankruptcy court — the District Court of the United States for the Southern District of California — for an order authorizing him to accept Vaughn's offer. The referee, over the bankrupt's objection, made and entered such an order on May 15, 1941. A petition to review that order was filed by the bankrupt on May 29, 1941.
On June 14, 1941, the referee made and entered an order enjoining the bankrupt from further prosecuting a cross-complaint which she had filed against Vaughn in the State court action. A petition to review that order was filed by the bankrupt on June 24, 1941.
On October 20, 1941, the referee made and entered an order allowing the amended claim of Kate A. Bullard, a creditor of the estate, in the sum of $3,950.98, subject to conditions therein prescribed. A petition to review that order was filed by the bankrupt on October 25, 1941.
The District Judge reviewed the above mentioned orders of the referee and, on April 20, 1942, filed a "memorandum of conclusions" which was, in effect, a statement of his findings of fact and conclusions of law.1 On May 5, 1942, the Judge signed and filed three written orders — an order affirming the referee's order of May 15, 1941, an order affirming the referee's order of June 14, 1941, and an order affirming the referee's order of October 20, 1941. On June 4, 1942, the bankrupt appealed from the order affirming the referee's order of May 15, 1941, by filing with the District Court a notice of appeal2 reading as follows:
"Notice is hereby given that Jennie Rosenberg, bankrupt, hereby appeals to the Circuit Court of Appeals for the Ninth Circuit from the order of the Honorable Harry A. Hollzer, United States District Judge of the above entitled district court, made and dated May 5, 1942, and filed May 5, 1942, approving and confirming a compromise of controversy and confirming the order of the referee compromising controversy, dated May 15, 1941."
The bankrupt does not appear to have taken any further steps to secure the review of the order appealed from.3 The trustee, on June 18, 1942, requested the clerk of the District Court to certify and transmit to this court designated portions of the record and proceedings below, in order to make in this court a motion for dismissal of the appeal.4 The clerk did so, and the trustee docketed the appeal in this court on June 22, 1942. On June 24, 1942, the trustee made a motion (in which Vaughn and Bullard have joined) for dismissal of the appeal on the ground that it was not taken in time.
This is an appeal under the Bankruptcy Act. Section 25 of the Act, 11 U.S.C.A. § 48, provides that such appeals "shall be taken within thirty days after written notice to the aggrieved party of the entry of the judgment, order or decree complained of, proof of which notice shall be filed within five days after service or, if such notice be not served and filed, then within forty days from such entry." It is conceded that, in this case, no written notice of the entry of the order complained of was served or filed, and that, therefore, the time within which an appeal could be taken was 40 days from the entry of the order. The question is, When was the order entered?
To answer that question, one must know what constitutes the entry of a judgment, order or decree in bankruptcy.
Order 1 of the General Orders in Bankruptcy,5 11 U.S.C.A. following section 53, provides: The clerk of the court below keeps such a docket. In that docket this case was duly entered and numbered. It contains a memorandum of the filing of the petition and of other matters specified in Order 1.
Order 37 of the General Orders in Bankruptcy,6 11 U.S.C.A. following section 53, provides: "In proceedings under the Bankruptcy Act the Rules of Civil Procedure for the District Courts of the United States (28 U.S.C.A. following section 723c) shall, in so far as they are not inconsistent with the Act or with these general orders, be followed as nearly as may be."
Rules 52(a) and 58 of the Rules of Civil Procedure are not inconsistent with the Bankruptcy Act or with the General Orders in Bankruptcy. Rule 52(a) provides: "In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."7 Rule 58 provides:
We conclude that in bankruptcy cases, as in civil actions generally, the notation of a judgment, order or decree in the docket constitutes the entry thereof. The order here appealed from — the order affirming the referee's order of May 15, 1941 — was noted in the docket on May 5, 1942. That notation constituted the entry of the order.
On June...
To continue reading
Request your trial
-
In re International Match Corp.
...ed. § 2.81, 8 Collier, §§ 1.35, 1.37; Kelley v. Everglades District, 319 U.S. 415, 418, 63 S.Ct. 1141, 87 L.Ed. 1485; Rosenberg v. Heffron, 9 Cir., 131 F.2d 80-82; In re Stein, D. C., 43 F.Supp. 845, 847. 10 Emphasis added. 11 See cases cited in notes 2 and 7, supra. 12 Glavey v. U. S., 182......
-
Richards v. United States
...not strictly in point, looks in the same direction. Neely v. Merchants Trust Co. of Red Bank, N. J., 3 Cir., 110 F.2d 525; Rosenberg v. Heffron, 9 Cir., 131 F.2d 80; United States v. Moore, 5 Cir., 182 F.2d 336; United States v. Rayburn, 8 Cir., 91 F.2d 162; In re Hurley Mercantile Co., 5 C......
-
In re Pure Penn Petroleum Co.
...8 Collier, Sections 1.35, 1.37: Kelley v. Everglades Drainage District, 319 U.S. 415, 418, 63 S.Ct. 1141, 87 L.Ed. 1485; Rosenberg v. Heffron, 9 Cir., 131 F.2d 80-82; In re Stein, D.C., 43 F.Supp. 845, 2 See Country Life Apartments v. Buckley, 2 Cir., 145 F.2d 935, 938; Patent Cereals v. Fl......
-
In re California Associated Products Co.
...the present case should have been taken within forty days from such entry.3 What, then, constituted the entry of the order? In Rosenberg v. Heffron, 131 F.2d 80, this Court held, in a situation similar to that of the case at bar, that in bankruptcy proceedings the notation of the order in t......