Morgan v. Benedum

157 F. 232 | 4th Cir. | 1907

WADDIEL, District Judge

(after stating the facts as above). Two questions are presented for consideration. First, whether in point of fact the proofs of claims were presented within the statutory period; and, second, whether the appellant has within the like period taken an appeal from the decision of the lower court allowing the claims.

In the view we take, it is unnecessary to decide the first question raised, though in passing it may be said that it would seem that the holders of the debts should be afforded opportunity to prove their claims as common creditors, after it was finally adjudged that they were creditors of that class. Keppell v. Tiffin Sav. Bank, 197 U. S. 355, 25 Sup. Ct. 443, 49 L. Ed. 790, 13 Am. Bankr. Rep. 552. But whatever may be the correct view in this respect, it cannot avail to serve these appellants, as manifestly the appeal from the order allowing the claims was not taken within the time prescribed by the statute. The bankruptcy act of July 1, 1898, c. 541, § 25, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], in plain terms provides that from orders allowing or rejecting a debt or claim of $500 or over, “such appeal shall be taken within 10 days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation as the case may be.” This appeal should have been taken within 10 days from the order of 26th of July, 1906, and the time cannot be extended by means of a petition for review or rehearing filed more than a month thereafter. To do so would be to evade the statute of limitations entirely. The fact that the appeal was taken within 10 days from the order finally denying the application for a rehearing entered on the 31st day of October,, 1906, cannot be used to bridge over the period from July to October. No appeal lies from an order rejecting a petition for rehearing under the bankrupt law. Sections 24 and 25 of the bankruptcy act prescribe in what cases appeals may be had, and these sections manifestly do not cover such a case as this. Loveland on Bankruptcy, §§ 302, 314. Assuming that the appellant relies on the rules and practice in equity causes as controlling in the matter of taking this appeal, he is clearly without remedy, as it is well settled that inasmuch as petitions for rehearing are addressed to the sound discretion of the court, no appeal lies from an order refusing the same. 11 Bates, Eq. Pro. 686; Steines v. Franklin, 14 Wall. 15, 20 L. Ed. 846; Buffington v. Harvey, 95 U. S. 99, 24 L. Ed. 381; Boesch v. Graff, 133 U. S. 699, 10 Sup. Ct. 378, 33 L. Ed. 787.

The decision of the lower court is plainly fight, and should be affirmed.

Affirmed.