105 F.2d 601 | 9th Cir. | 1939
Appellee, Palo Verde Irrigation District, has moved to dismiss an appeal from an interlocutory decree which, in a proceeding under chapter 10 (§§ 81-84) of the Bankruptcy Act,
Section 25a of the Bankruptcy Act
The decree in this case was entered on October 7, 1938. A written notice of the decree, dated October 8, 1938, was served! on appellants, but no proof thereof was ever filed. Hence, if an. appeal, such as this one, from an interlocutory decree in a proceeding under chapter 10 of the Bankruptcy Act is an appeal under the Act, within the meaning of § 25a, the time within which appellants could appeal was 40' days from October 7, 1938.
With respect to interlocutory decrees in proceedings under chapter 10, § 83(e) of the Bankruptcy Act
At all times here pertinent,
At all times here pertinent, equity appeals were governed, as to the manner of taking them, by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The “time prescribed” for appealing from an interlocutory decree in equity (Judicial Code, § 129)
The fact, if it be a fact, that the rule of computation prescribed in Rule 6(a) differs from that formerly used in Federal courts, is immaterial. The former rule was itself a court-made rule. Congress never prescribed it. It was, at most, a mere rule of procedure, which the Supreme Court was empowered to change.
This appeal was taken (1) by applying for and obtaining from the District Court an order allowing it and (2) by filing with the District Court a notice of appeal. Being uncertain as to whether they should comply with § 8(c) or with Rule 73(a), supra, appellants complied with both. They applied for and obtained an order allowing the appeal — thus complying with § 8(c) — on October 31, 1938, which was, of course, within the 40-day period mentioned above. Hence, if an appeal, such as this one, from an interlocutory decree in a proceeding under chapter 10 of the Bankruptcy Act is an appeal under the Act, a valid and timely appeal was taken by appellants on October 31, 1938.
Appellants filed their notice of appeal —thus complying with Rule 73(a) — on November 7, 1938, which, as we have shown, was within the 30-day period mentioned above. Hence, if an appeal, such as this one, from an interlocutory decree in a proceeding under chapter 10 of the Bankruptcy Act is an equity appeal, and is not an appeal under the Bankruptcy Act, a valid and timely appeal was taken by appellants on November 7, 1938.
Appellee assumes, erroneously, that appellants took two appeals,, one on October 31, 1938, one on November 7, 1938. It has, accordingly, filed two motions to dismiss. Actually, appellants took but one appeal. In the taking of it, they did more than was necessary. Whether their unnecessary acts were done on October 31, 1938, or on November 7, 1938, we need not and do not decide. On one or the other of those days —it matters not which — they took a valid and timely appeal.
Motions denied.
50 Stat. 654-659, 11 U.S.C.A. §§ 401-404.
52 Stat. 855, 11 U.S.C.A. § 48(a).
50 Stat. 658, 11 U.S.C.A. § 403(e).
43 Stat. 937, 28 U.S.C.A. § 227.
All proceedings below, including this appeal, were prior to the amendment of Order 36 of the General Orders in Bankruptcy, 11 U.S.C.A. following section 53, effective February 13, 1939.
43 Stat. 940, 28 U.S.C.A. § 230.
Effective September 16, 1988.
As used in these rules, “judgment” includes a decree or any order from which an appeal lies. See Rule 54(a).
43 Stat. 937, 28 U.S.C.A. § 227.
Here, if appellee’s contention is correct, the “applicable statute” is § 129 of the Judicial Code.
Act of June 19, 1934, c. 651, 48 Stat. 1084, 28 U.S.C.A. §§ 723b, 723c.