Blanchard v. Ammons

183 F. 556 | 9th Cir. | 1910

GILBERT, Circuit Judge

(after stating the facts as above). The petitioners on March 25, 1905, presented to the District Court two. petitions and applications to set aside the adjudication of bankruptcy, both applications presenting the same allegations of fact, and seeking the same relief, one of which they signed as stockholders, the other as creditors of the bankrupt. On December 19, 1905, upon a hearing had on both petitions, the court denied the same, but entered an order to that effect only as to the latter petition. From that order the petitioners took their appeal to the Supreme Court of the Territory of Arizona, and on March 22, 1907, their appeal was dismissed (11 Ariz. 36, 89 Pac. 516). More than two years later, and more than three years after the District Court had passed upon their petitions, they suggested-to the court for the first time that they considered that their petition as stockholders had not been ruled upon, whereupon the order of the court of April 27, 1909, was made, denying their petition, but reciting that the decision of the court of December 19, 1905, had been intended to determine all the issues of law presented by both petitions, and that since that time the matter had not been under advisement by the court, but had been wholly decided at that time, and that in the meantime no suggestion had been made to the court that anything remained in dispute in connection with said petitions. It appears clearly from the record that the order which the court made on April 27, 1909,'should have been nunc pro tunc as of.December 19, 1905, and that the matters presented on both petitions were at that time considered and determined by the court. There is no time fixed in the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp.. St. 1901, p. 3418}) within which a petition for revision shall be presented, but it is the acknowledged rule that it must he presented within a reasonable time. An appeal from the adjudication of bankruptcy is required to be taken within 10 days, and by analogy it would seem that a petition for revision of the adjudication of bankruptcy ought to be taken within a similar time, unless there are circumstances excusing delay. But the courts have generally held that a petition for revision must be presented within six months. Doveland on Bankruptcy, § 313, and cases there cited. There are no circumstances which excuse the de.lay in this case. • All the rights of the petitioners were determined on December 19, 1905. If the petitioners were aware that their petition as stockholders had not been specifically mentioned in the order of the court then made, it was their duty to bring the matter to the attention of the court. They waited more than three years before suggesting that on the record one of the petitions remained undetermined. In the meantime the property of the bankrupt was sold, and distributed among creditors. The petitioners’ position as stockholders to attack the adjudication of bankruptcy upon the facts alleged in their petition was no stronger than their position as creditors upon the facts alleged in their creditors’ petition. The order which they seek here to revise must be deemed to have been made at the time when both petitions were heard and determined, December 19, 1905.’ The bankruptcy law contemplates that the bankrupt’s estate shall be administered with all convenient dispatch, so that the property may he distributed among the creditors, and the bankrupt discharged from his debts, and that to that end parties litigant shall be alert and active to protect their rights, and to proceed with promptness in asserting the same.

The petition will be dismissed.