United States v. Dowell

• Decision Date: 10 March 1936
• Docket Number: 10412.,No. 10392,10392
• Citation: 82 F.2d 3
• Parties: UNITED STATES v. DOWELL (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 3 (1936)

UNITED STATES v. DOWELL (two cases).

Nos. 10392, 10412.

Circuit Court of Appeals, Eighth Circuit.

March 10, 1936.

Gordon Frierson, Asst. U. S. Atty., of Little Rock, Ark. (Fred A. Isgrig, U. S. Atty., of Little Rock Ark., on the brief), for the United States.

Arthur L. Adams, of Jonesboro, Ark. (Cunningham & Cunningham, of Walnut Ridge, Ark., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judges.

Two appeals are presented on the record in this case. The first appeal was allowed by the District Judge on July 15, 1935, in response to a petition filed on the same date. This appeal is apparently taken under section 25a of the Bankruptcy Act, as amended (11 U.S.C.A. § 48 a). The second appeal was allowed by this court on July 19, 1935, upon a petition to the court under section 24b of the Bankruptcy Act, as amended (11 U.S.C.A. § 47 b). Both appeals are from a judgment rendered June 20, 1935, sustaining an order of the referee allowing the claim of the appellant against the bankrupt estate of D. Bloom, bankrupt, as a common claim and denying such claim preference or priority.

The appellee urges that both appeals must be dismissed for want of jurisdiction in that they were not taken in proper time and manner.

The record discloses that appellant on April 19, 1934, filed its claim based upon a judgment against the bankrupt dated November 27, 1933, for $4,997.01 with interest at 6 per cent. per annum from November 4, 1931. Appellee filed exceptions thereto May 11, 1934, objecting both to the allowance of the claim in any amount and to the government's claim for a preference or priority. On August 3, 1934, the exceptions were amended; the prayer of the amendment being "that petition of the United States to classify its said claim as a prior claim be denied and dismissed and that said claim be classified and allowed as a common claim payable pro rata from the general assets of said estate."

There was a hearing before the referee, and on April 2, 1935, an order was entered allowing the claim as a common claim and denying it a preferred or prior status.

Appellant petitioned the District Court for review of the referee's order. A hearing was had before the court on the record certified up by the referee and judgment entered thereon on May 2, 1935, sustaining the order of the referee.

With respect to what occurred in connection with the judgment so entered on May 2, 1935, the trial court in his order of June 20, 1935, from which these appeals are taken, at the request of appellee made the following finding of fact: "This claim for priority by the United States was duly presented and heard by the court on the record certified up by the referee in bankruptcy and judgment thereon entered on May 2, 1935, denying a review of the order of the referee denying such priority. Thereafter and on May 31, 1935, respondent, the United States, through its attorney duly served notice upon the trustee for D. Bloom, bankrupt, of filing and presentation to this court of petition for appeal from the said judgment entered on May 2, 1935. On the same date, May 31, 1935, said petition for appeal was duly filed, was presented to the United States District Judge and order allowing the appeal under section 25 of the Bankruptcy Act, as amended (11 U.S.C.A. § 48), was duly made and entered by the United States District Judge. That on the same date, May 31, 1935, said petitioner, the United States, through its attorney filed with the clerk præcipe for transcript on appeal. Thereafter and on June 12, 1935, respondent, the trustee for D. Bloom, bankrupt, filed his præcipe for additional transcript on appeal. Thereafter and on June 14, 1935, petitioner the United States through its attorney filed said motion to set aside the judgment made and entered under date of May 2, 1935. That thereafter and on June 17, 1935, respondent, the trustee for D. Bloom, bankrupt, filed response to said motion to set aside the judgment. That the term of court for the Jonesboro Division of the Eastern District of Arkansas at Jonesboro lapsed May 5, 1935."

The proceedings on appeal from the judgment of May 2, 1935, are not set out in the record. Our only knowledge of that appeal is found in the court's finding of facts and in the reference thereto in the trustee's response to the appellant's motion to set the judgment aside and for a rehearing, and in the appellant's petition to this court for leave to appeal from the judgment of June 20, 1935, under section 24 (b) of the Bankruptcy Act.

The motion of the appellant filed June 14, 1935, to which reference is made in the court's finding of fact set out above, is as follows: "Comes the petitioner, the United States, and moves the court to set aside its judgment rendered May 2, 1935, in the above cause, in which judgment the claim of the United States to the right of priority against the above bankrupt estate was denied; and moves the court that a rehearing be granted herein on the said question."

On June 17,...