Thummess v. Von HoffmanThummess v. Von Hoffman
- Reporters:
- ,
- Before:
- Jones
Sеction 39, sub. c of the Bankruptcy Act, as amended by the Act of June 22, 1938, c. 575, Sec. 1, 52 Stat. 858, 11 U.S.C.A. *292 § 67, sub. c, provides, in part here material, as follows: “A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court may for cause shown allow, file with thе referee a petition for review of such order by a judge and serve a copy of such petition upon the adverse parties who were represented at the hearing.”
In the present case, the ten day period following the entry of the referee’s order (denying the bankrupt a discharge) expired without a petition for review having been filed or an application for extension of time for such filing having been made. Thereafter, the court below, finding that cause for allowance of extended time for the filing of a review petition ' had been shown, entered аn order allowing the bankrupt five days from the date of the court’s order within which to file his petition. From that order, the trustee has appealed, contending that the court was without power to extend the time for the filing of a petition for review, the application therefor not having beеn made within the ten days following the entry of the referee’s order whereof review was sought. The answer to the question, which the appellant thus raisеs, necessarily depends upon the meaning of the above quoted provision of Section 39, sub. c, of the Bankruptcy Act.
Prior to the inclusion of Subsection c of Section 39 in the Bankruptcy Act, the procedure for the review of an order of a referee was governed by General Ordеr XXVII of the Supreme Court, 11 U.S.C.A. following section S3. As the General Order did not prescribe any time within which a petition for review might be filed, it was held that, to be timely, suсh a petition should be filed within a reasonable period following the entry of the referee’s order. American Trust Co. v. W. S. Doig, Inc., 4 Cir.,
Obviously, in the districts where the rule prevаiled that a petition for review might be filed within a reasonable time after the entry of an order of a referee, no question could, or did, arise, as to any want of power in a bankruptcy court, to entertain a petition for review, on the ground that an arbitrary period of time had elapsed since the entry of the referee’s order. And, even in the districts where local rules of court prescribed a definite period for the filing оf a petition for review or thereafter by leave of court, where proper cause therefor was shown, the courts entertained petitions for review which had not been filed until after the expiration of the definite period allowed for such purpose by local rule of court. In re Oakland & Belgrade Silver Fox Ranch Co., supra; In re Lesher & Son, supra; In re Wister et al., D.C.,
The purpose of Section 39, sub. c, as expressed by the House Committee on Judiciary at the time the proposed amendment wаs submitted to Congress, was to establish definitely the practice (i. e., on petitions for review) in the interest of certainty and uniformity
1
. This, Congress accomрlished by incorporating in the Bankruptcy Act, as Section 39, sub. c, what had been substantially the law in a number of districts under General Order XXVII and local rules of сourt. The intent of the provision is to place a limitation upon the time within which an
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aggrieved person can, as a matter of right, file a petition for the review of a referee’s order, still leaving to the discretion of the court the allowance thereafter of permission to file such a petition, accordingly, as cause might be shown. If it had been the legislative intent to restrict the court’s power in extending the time for filing to casеs where action looking thereto is taken within the ten days allowed the aggrieved party for the filing of a review petition as a matter of right, then Cоngress would have plainly so declared, particularly, in view of the fact that the right to review orders of a referee is elsewhere conferred upon the bankruptcy court by a different section of the Bankruptcy Act (Sec. 2(10) of the Act of July 1, 1898, c. 541, 30 Stat. 545, as amended,
Under the construction which the appellant urges, the power of the court to extend the time for the filing of a petition for review would in frequent needs prove unаvailing. The same justifiable cause which would prevent the filing of a petition within the ten days following the entry of the referee’s order might equally serve to prevent an application within the same period for an extension of the time for filing. Yet, the court would be powerless to relieve against the hardship of that situation if the appellant’s contention were adopted. The injustice of such a result would weigh against the interpretation which the appellant advances, even if the meaning of the amendment were doubtful. Bate Refrigerating Co. v. Sulzberger,
The appellant bases his argument on court decisions, both federal and state, holding that, where a right of appeal is given by statute, the time limited for the taking of an aрpeal goes to the jurisdiction of the appellate court and must therefore be complied with strictly. There can be no doubt about that. But, the principle is not in point here. By virtue of Section 2 of the Bankruptcy Act of July 1, 1898, as amended, the jurisdiction of a bankruptcy court attaches upon the filing of a petition in bankruptcy and continues to attend thereafter until the closing of the estate. Acme Harvester Co. v. Beekman Lumber Co.,
Affirmed.
Notes
See report of Mr. Ohandler for House of Representatives Committee • on Judiciary on The Revision of The National Bankruptcy Act, Report No. 1409—75th Congress, 1st Session, p. 11.