140 F. 849 | 6th Cir. | 1905
having made the foregoing statement, delivered the opinion of the court.
As these appeals all rest upon substantially the same grounds, they were heard together and may be properly disposed of in one opinion. The motion to dismiss the appeals is-founded on the character of the order, and that involves in one aspect the jurisdiction of the court in bankruptcy.
For the appellants it is contended that the court, having refused to declare them bankrupts, had no authority to treat them and their property as if they were bankrupts. Although there are several assignments of error on each appeal, they all rest on this contention. The argument is that, not being bankrupts, they are not subject to the jurisdiction of the bankruptcy court; that the refusal to declare them bankrupts put an end to the authority of the court to retain control of their property for the purpose of the bankruptcy proceeding; and it is complained that the court by its order in effect denied to them the immunity to which they were entitled by reason of the provisions of the bankruptcy act. By Act July i, 1898, c. 541, § 4b, 30 Stat. 547 [U. S. Comp. St. 1901, p. 3423], wage earners and tillers of the soil a,re excepted from those who may be adjudged involuntary bankrupts. And for our present purpose we think the other appellants, who committed no act of bankruptcy, might be regarded as standing on the same footing as those who by reason of their occupation were exempt from an adjudication of bankruptcy. It may be conceded that but for the relation, of these
It is not necessary for us now to determine what the final disposition to be made by the District Court of the individual assets of these appellants should be. The order says they are “all to be administered the same as if the said parties, and each of them, had been adjudged bankrupts.” But this is indicative of a purpose, merely, to be carried out in future proceedings and orders, and does not now definitely order what the administration and distribution of these assets shall be. When the time comes for making orders directly controlling the assets in that behalf, the question suggested will be presented, and the court may be required to determine whether so much of the individual assets as may be sufficient to pay the individual debts shall be turned back to these several partners, or whether the court will itself in the bankruptcy proceeding attend to the payment of the individual debts. If, as we think, the court had jurisdiction and the assets of the partners were under the control of the court, it was a question whether actual possession by the trustee was necessary or convenient, and this was a question of discretion,
Counsel for the appellants requests that, if this appeal should be held to be a wrong remedy, we should allow the prayer for the allowance of an appeal to operate as a prayer for revision under section 24b. But this is an essentially different remedy, and provides for the review of decisions of questions of law only, and not of findings of fact as is done on appeal. For a time subsequent to the enactment of the bankrupt law, the courts had some difficulty in settling its construction’ in regard to the- methods of reviewing the decrees and orders of the District Court in bankruptcy, and some decisions were made which might seem to countenance the idea that the methods prescribed by sections 24 and 25 were somewhat flexible, and might in some circumstances be employed interchangeably. But more recently the subject has been cleared, and the later decisions of the Supreme Court have made the construction of these sections plain. See especially Denver First National Bank v. Klug, 186 U. S. 202, 22 Sup. Ct. 899, 46 L. Ed. 1127; Elliott v. Toeppner, 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200; Holden v. Stratton, 191 U. S. 115, 24 Sup. Ct. 45, 48 L. Ed. 116; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986. We are therefore constrained to refuse the request of counsel that we treat the prayer for appeal as a prayer for revision. Probably, however, the views we have indicated in discussing the motion to dismiss would be fatal to the petitioners on a petition for review;-and, if ,so, no prejudice results from the choice of the wrong remedy.
The appeals will be dismissed, with costs to the appellee.