Thе trustee in bankruptcy of Sterling stores, Inc., moved to dismiss this appeal of the United States, a claimant аgainst the estate of the bankrupt, on the ground that the appeal was not taken within the time fixed by the stаtute (thirty days after the judgment; 11 U.S.C.A. § 48 (a).
The record shows that the United States filed its claim for taxes with the trustee in bankruptcy on November 18, 1931, and that the claim was disallowed by the referee on Tune 17, 1932, after hearing. On October 12, 1932, a petition for review of the judgment of the referee, duly prosecuted by the government, was deniеd by the District Court and a notation of the court’s decision was then indorsed by the court upon the referеe’s certification of the questions for review_ The government took no appeal from the judgment of the District Court within the prescribed thirty days, but on January 13, 1933, some three months after its petition for review had been denied by the District Court, the government presented to that court a so-called “Petition for Rehearing.” The petition for rehearing recited that there had been' a hearing on the government’s claim by the District Court on October 12, 1932, and that the District Court had on that day rendered a “decision—denying government’s petition for review of the findings of the referee denying the claim of the government,” but asserted on behаlf of the government that the attorney for government had at the time of the hearing “requested leavе to file' certain documents as a part of the record in the case and “had understood that timе would granted to secure and present them” and that the attorney “was wholly unprepared for the dеcision of the court” against the government. The rehearing was prayed for on the ground that the doсuments were “necessary-as a part of the record in the event petitioner decides to take an appeal from the decision of the court.
The gоvernment’s petition for rehearing was presented ex parte to the district court rehearing was granted thereon on January 13, 1933, and copies of the petition order were transmitted to the attorney for thе trustee in bankruptcy in a letter from the United States’ attorney, as follows:
“Enclosed are copiеs of a petition for rehearing and an order granting the rehearing on the government s claim in this case denied on October 12, 1932.
“The petition practically sets out all that I can tellyou about it, and Judge Mаrtineau has agreed to- handle the mat *135 ter in this way because the government may want to appeal to the Circuit Court of Appeals and it cannot get into the record the exhibits that it wants as the case now stands.
“I shall be glad to show you what we propose to file, and after it has been filed Judge Martineau will again deny the claim, then we can prepare the judgment accordingly. Meanwhile, I am writing to the Bureau asking that they decide now whether they want to appeal, and suggest that we hold up our judgment until I hеar from the Bureau.”
The matter coming on further to be heard by the trial court on June 4, 1935, the court found “that on October 12, 1932, after a hearing, an order was entered denying said petition for review and affirming the order of the referee; that on January 13, 1933, upon petition filed on that day, the court granted a reheаring for the purpose of enabling the United States of America to perfect an appeаl to the Circuit Court of Appeals.”
It was thereupon ordered “that the petition of the United States оf America for a review of the referee’s decision be * * * denied.”
From this record, it is clear that the trustee in bankruptcy obtained a final judgment of the District Court disallowing the claim of the United States against the bankrupt estate oti October 12, 1932, and that the right of the United States to appeal from the order wаs lost to the government by its failure to take an appeal within the thirty dajrs fixed by the statute. The proceedings by which it was attempted to extend time of appeal were ineffectual to that end. Conboy v. First Nat. Bank of Jersey City,
It is contended for the United States that it was not bound by the time limit which the statute fixes for taking appeals and cases are cited holding that general statutes of limitations do not ordinarily aрply to the United States, and particularly that the United States may file a claim in bankruptcy after the timе generally limited for such filing. New York v. Irving Trust Co.,
The reason that the government is not bound by general statutory provisions which limit the time to file claims in bankruptcy is that such provisions are statutes of limitations. New York v. Irving Trust Co., supra; In re Cuban-Atlantic Transport Corporation, supra; Villere v. United States (C.C.A.5)
But the provisions of the Bankruptcy Aсt under which this appeal is attempted (11 U.S.C.A. §§ 47 and 48) are not statutes of limitations. They concern the jurisdictiоn of the appellate court. “A statute limiting the time within which an appeal may be prosecuted is mandatory and jurisdictional.” Broders v. Lage (C.C.A.8)
The United States, having presented its claim against the bankrupt еstate and having litigated the claim before the court of competent jurisdiction, was bound by the court’s judgment as any ordinary litigant would be, and this court may not exercise jurisdiction to review such final judgment except in accordance with the statutes. United States v. The Thekla,
The appeal is dismissed, with directions to the trial court to reinstate its judgment of October 12, 1932.