In re Sharick, 1 Alaska 398

In re Sharick

1 Alaska 398 | D. Alaska | 1901

BROWN, District Judge.

It will be observed, as appears from the files, that three days after this motion was filed the petition for review was filed with the referee in bankruptcy, and also in the District Court, thereby abandoning the so-called appeal.

Rule No. 27 of the Supreme Court (18 Sup. Ct. viii) touching the subject of bankruptcy, reads as follows:

“When a bankrupt creditor or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon.”

The notice of appeal that was filed August 3, 1901, refers to a proceeding not authorized by the law or any order or rule of the Supreme Court, and will, therefore, without further consideration, be dismissed on motion of the claimants heretofore referred to, which was filed in this court on the 14th day of December, 1901, and it is so ordered.

The rule of the Supreme Court above quoted fixes no time within which the petition for review shall be presented or filed with the referee, but the language of the rule as to the duty of the referee when such petition is filed with him is very imperative, and requires that the referee “shall forthwith certify to the judge,” etc., the question presented. The word “forthwith” ordinarily means “immediately,” “without de*401lay,” “directly.” Generally, in law, the term is understood to mean “as soon as the thing required may be done by reasonable exertion confined to that object,” which is another way of saying that it must be done within a reasonable time. Accepting this definition, we conclude that the work should be done speedily, pursued with reasonable industry, and concluded within such time as might be ordinarily deemed reasonable for the performance of the work in hand.

The rule of the Supreme Court, however, fixes no time within which proceedings for review shall be taken. We are left, therefore, without any specific guide as to the question of time, and must determine the same by the general character of the act of Congress and the rules of proceeding by the Supreme Court. Where no rule is definitely fixed requiring an act to be done within a given time, it is deemed that it shall be done within a reasonable time. What is to be deemed a reasonable time depends largely, in a case of this kind, upon the general trend of the bankrupt act. The act itself is intended as a speedy remedy, one that shall be rapidly and promptly enforced, and shall not be unreasonably delayed. “A reasonable time,” says Mr. Rapalje, “must be determined by the circumstances of each particular case.” What might be a reasonable time under one condition of circumstances would not be reasonable .under other circumstances. But certainly, in following the general tenor of the act, we might reasonably conclude that a review of •'he decision or order of the referee should be pursued as promptly as remedies by appeal from this court to higher courts.

Rooking, then, to the bankrupt law for some guidance in this behalf, we find that:

“The Supreme Court of the United States, the Circuit Courts of Appeals of the United States, and the Supreme Courts of the states *402and territories, in vacation, in chambers, and during their respective terms, as now or as they may be hereafter held, are hereby invested with' appellate jurisdiction of controversies arising in bankrupt proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other causes.”

Appeals, as in equity cases, may be taken in bankruptcy proceedings from the court of bankruptcy of the Circuit Court of Appeals of the United States and of the Supreme Court of the territories in the following cases, to wit: (i) From a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; (3) from a judgment allowing or rejecting a debt or claim of $500 or over. Such appeals shall be taken within 10 days after the judgment appealed • from has been rendered, and may be had and determined by the appellate' court in term or vacation, as the case may be.

Where the act provides that appeals from these courts to the Circuit Court of Appeals of the United States shall be taken within 10 days on claims amounting to $500 or over, it would seem that certainly -no longer time should be allowed for filing a petition for review of a like question determined by a referee and bringing the same before the District Court. To file such a petition six months or more after the determination by the referee seems wholly out of harmony with the general intent and purpose -of the bankrupt act, which intent and purpose unquestionably is that all such matters should be speedily determined. It seems to me, therefore, that the motion of the claimants on the last ground stated, if not on the others, should be sustained, and it is so ordered.