Marcy v. Miller

Mar 25, 1938

No. 1596

Versions:95 F.2d 611

1938 U.S. App. LEXIS 4181

BRATTON, Circuit Judge.

Aрpellant filed a petition on June 24, 1936, for composition or еxtension ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of her debts under section 75 of the Bankruptcy Act, as amended, 11 U.S.C.A. § 203. U. S. Miller and C. R. Hille were listed in the schedules as creditors holding seсurities, each having a mortgage ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍upon separate land in Trego County, Kansas. Miller .moved to dismiss the proceeding as to him and the *612land covered by the mortgage in his favor on the ground that the mortgage was duly foreclosed and the land sold at sheriff’s sale on December 24, 1934; that he became the purchaser; that a sheriff’s certificate of purchase issued to him on December 27th; that the period of redemption had expired; that the relationship of debtor and creditor no longer existed between appellant and him; that the land covered by the mortgage was no longer an asset of the appellant; and that he was not a proper party to the proceeding. C. R. Hille and Henry G. Hille filed a similar motion reciting that the mortgage to C. R. Hille was duly foreclosed and the land sold on September 30, 1935; that they became the purchasеrs; that the sale was confirmed by order of the court and a sheriff’s certificate duly issu‘ed on the same day; that they were the owners of thp land and were not creditors ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of appellant; and that the bankruptcy court was without jurisdiction of the land or to interfere with thе state court in the enforcement of its decree. The cоnciliation commissioner entered separate orders on August 4, 1936, sustaining the motions and withdrawing the lands from the proceeding. Appellant sought review • of. such orders. By order entered on Decembеr 21, 1936, the court sustained the orders of the commissioner and withdrew the lands covered by the respective mortgages from the proceeding. No appeal was taken from that order. On May 20, 1937, aрpellant filed a motion to reinstate Miller and Hille as creditors and to take jurisdiction of the lands covered by the mortgages. Thе motion was overruled on May 27th. Appellant sought and obtained аn order of the court below allowing an appeal from that action. No appeal was sought or obtained from this court.

The order overruling the motion to reinstate is a proceeding in bankruptcy as distinguished from a controversy in bankruptcy. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍As such it can be reviewed only on appeal allowed by this court under seсtion 24b of the Bankruptcy Act, as amended, 11 U.S.C.A. § 47(b). It cannot be reviewed on appeal allowed by the district ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court. Meyer v. Kenmore Granville Hotel Co., 297 U.S. 160, 56 S.Ct. 405, 80 L.Ed. 557; Wilkerson v. Cooch, 9 Cir., 78 F.2d 311; Hey v. Ward, 8 Cir., 84 F.2d 193; In re Combs, 2 Cir., 88 F.2d 417; Bank of American Nat. Trust & Savings Ass’n v. Cuccia, 9 Cir., 90 F.2d 100.

The appeal is footless for another reason. It is expressly taken from the order of May 27, 1937, overruling the motion to reinstate; but the errors assigned do not challenge that оrder. The assigned errors are directed to the order of December 21, 1936, withdrawing the lands covered by the mortgages from the proсeeding. The time within which an appeal could be taken from that order had long since expired and it had become res judicаta when this appeal was prayed and allowed. An order made in a proceeding in' bankruptcy may be reviewed only on appeal from it, not on appeal expressly taken frоm a subsequent order entered after the time allowed for appeal from the former order has expired. In re Trust No. 2988 of Foreman Trust & Savings Bank, 7 Cir., 85 F.2d 942.

The appeal is dismissed.