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substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall thereupon be had in the pleadings, trial, and determination of the cause, as in action at law commenced and prosecuted, in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. The final judgment of the court shall be conclusive.]
Contrary to the former law, no provision has been made for a special form of appeal; but the practice is similar to that in equity cases in the federal courts, except that the time for taking the appeal is limited, and must be within ten days after the judgment appealed from has been rendered.
In computing this time the day of the judgment is excluded, under the rule that in computing the time the first day is excluded and the last included, unless the last fall on a Sunday or holiday, in which event the day last included shall be the next day thereafter which is not a Sunday or a legal holiday. (Sec. 31.) As to the jurisdiction of the appellate court in bankruptcy matters, see section 24. For the general jurisdiction of the circuit courts of appeals, see 1 Supp. U. S. R. S. 901.
In what cases allowed.- A proceeding to have a debtor adjudged bankrupt terminates with the judgment on the petition; and the subsequent proceedings to distribute the estate of the bankrupt are consequent upon such action, but form no part of it; and the proceedings therein cannot be reviewed in the circuit court until after judgment. (In re Oregon Bulletin Printing & Publishing Co., 14 N. B. R. 394; 3 Sawy. 529; 8 Chi. Leg. News, 143; Fed. Cas. 10560.)
The court overlooked specifications filed by a creditor and granted a discharge without considering them. It was held that it was a proper subject of review by the circuit court. (In re Buchstein, 17 N. B. R. 1; 9 Ben. 215; Fed. Cas. 2076.) An order of the district court discharging a bankrupt cannot be reviewed in the circuit court on writ of error, when the record presents questions of fact. (Ruddick v. Billings, 3 N. B. R. 14; Woolw. 330; 2 West. Jur. 275; Fed. Cas. 12110.)
Where bankrupt seeks to prevent the establishment of a claim, he has sufficient interest to entitle him to appeal from judgment thereon. If he be declared a bankrupt after the taking of appeal and the judgment below be affirmed, he may appeal from the affirmance. (Sanford v. Sanford, 12 N. B. R. 565.)
It was held under the act of 1867, that an appeal from a district court to the circuit court will lie upon a final decree in a suit in equity instituted by or against an assignee where the sum in controversy exceeds $500. (In re Zug et al., 16 N. B. R. 280; 23 Int. Rev. Rec. 392; 34 Leg. Int. 402; 25 Pittsb. Leg. J. 29; Fed. Cas. 18222.)
Where no bond has been filed in a case of appeal, no appeal can be allowed after the expiration of the time limited from the entry of the decree, as the district court cannot enlarge the right of appeal. (Benjamin v. Hart, 4 N. B. R. 138; 4 Ben. 454; Fed. Cas. 1302.) In computing the time within which an appeal in bankruptcy must be taken, Sunday is counted, except when the last day would fall on Sunday, when it is excluded. (In re York & Hoover, 4 N. B. R. 155; 10 Amer. Law Reg. (N. S.) 3; Fed. Cas. 18139.)
No appeal lies to the Supreme Court from a decision of the circuit court upon a petition to have an adjudication set aside (Sandusky v. Bank, 12 N. B. R. 176; 23 Wall. 289); nor does it lie to review the action of the circuit courts in the exercise of supervisory jurisdiction. (Wiswall et al. v. Campbell et al., 15 N. B. R. 421 (N. S.); First Nat. Bank of Troy v. Cooper et al., 9 N. B. R. 529; 20 Wall. 171.) A refusal by the circuit court to entertain a bill to review district court proceedings gives no right of appeal to the United States Supreme Court, the presumption being that refusal was based upon want of merits; but where refusal is for want of jurisdiction, an appeal will lie to enable the complainants to have a hearing before the circuit court, if the Supreme Court decides them to be thereto entitled (First Nat. Bank of Troy v. Cooper et al., 9 N. B. R. 529; 20 Wall. 171); and where a party appeals from the circuit to the United States Supreme Court, the allowance of the appeal is to relate back to the time when the original application was made for appeal to the circuit court, and entitles a party to a stay of proceedings. (Thornhill et al. v. Bank of Louisiana, 5 N. B. R. 377; 4 Amer. Law T Rep. (U. S. Ct.) 245; 1 Amer. Law T. Rep. Bankr. 287; Fed. Cas. 13991.)
b. From any final decision of a court of appeals, allowing or rejecting a claim under this Act, an appeal may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States, in the following cases and no other:
The Supreme Court provides in Orders 33 that the lower court, when rendering judgment or decree, must make and file a finding of the facts and its conclusions of law thereon, stated separately, and the record to be transmitted to the Supreme Court is to contain only the pleadings, the judgment or decree, the finding of facts and the conclusions of law. Such appeals must be taken within thirty days after judgment.
1. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or
[Act of 1867. SEC. 9. That in cases arising under this act no appeal or writ of error shall be allowed in any case from the circuit courts to the Supreme Court of the United States, unless the matter in dispute in such case shall exceed two thousand dollars.]
What constitutes matter or amount in controversy.- As to what constitutes "matter in controversy or "matter in dispute," the supreme court has long since definitely stated the law. Chief Justice · Taney, in Barry v. Barry (5 How. 103), states that matter in controversy, under section 22 of the Judiciary Act, must be "money or some right, the value of which, in money, can be calculated and ascertained. The words of the act of congress are plain and unambiguous. They give the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calculated, in the ordinary mode of business transactions. . . . It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the circuit court." Chief Justice Marshall, in passing upon this same question in Gordon v. Ogden (3 Pet. 33), said: "The jurisdiction of the court has been supposed to depend on the sum or the value of the matter in dispute in this court, not on that which was in dispute in the circuit court. If the writ of error be brought by the plaintiff below, then the sum which his declaration shows to be due may be still recovered, should the judgment for a smaller sum be reversed; and consequently the matter in dispute cannot exceed the amount of that judgment. Nothing but that judgment is in dispute between the parties." The same view is laid down in Kanouse v. Martin (15 How. 198), wherein it is held that: "The settled rule is, that until some further judicial proceedings have taken place, showing upon the record that the sum demanded in the declaration is not the matter in dispute, that sum is the matter in dispute."
2. Where some Justice of the Supreme Court of the United States shall certify that in his opinion the determination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this Act throughout the United States.
c. Trustees shall not be required to give bond when they take appeals or sue out writs of error.
d. Controversies may be certified to the Supreme Court of the United States from other courts of the United States, and the former court may exercise jurisdiction thereof and
issue writs of certiorari pursuant to the provisions of the United States laws now in force or such as may be hereafter enacted.
Rule 14 of the Rules of the Supreme Court of the United States adopted January 7, 1884, and still in force, provides as follows: "No certiorari for diminution of the record will be hereafter awarded in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court accounting satisfactorily for the delay."
By the act of March 3, 1891 (1 Supp. R. S. 903, sec. 6), it is provided that the Supreme Court may require by certiorari or otherwise certain cases made final in the circuit courts of appeals to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.
Sec. 26. Arbitration of controversies.-a. The trustee may, pursuant to the direction of the court, submit to arbitration any controversy arising in the settlement of the estate.
b. Three arbitrators shall be chosen by mutual consent, or one by the trustee, one by the other party to the controversy, and the third by the two so chosen, or if they fail to agree in five days after their appointment the court shall appoint the third arbitrator.
c. The written finding of the arbitrators, or a majority of them, as to the issues presented, may be filed in court and shall have like force and effect as the verdict of a jury.
[Act of 1867. SEC. 17. He may, under the direction of the court, submit any controversy arising in the settlement of demands against the estate, or of debts due it, to the determination of arbitrators, to be chosen by him, and the other party to the controversy, and may, under such direction, compound and settle any such controversy, by agreement with the other party, as he thinks proper and most for the interest of the creditors.]
This provision affords an expeditious and inexpensive mode of adjusting, without litigation, many of the contested claims arising in the settlement of an estate. The application of the trustee to submit a controversy to the determination of arbitrators must clearly and distinctly set forth the subject-matter of the controversy and the reasons why he thinks it proper and for the best interests of the estate to have the controversy so settled. (Orders XXXIII.)
A bankrupt was a party to the submission of a controversy to register; held, that he was bound by the decision, in a collateral action. (Johnson v. Worden, 13 N. B. R. 335.)
Sec. 27. Compromises.-a. The trustee may, with the approval of the court, compromise any controversy arising in the administration of the estate upon such terms as he may deem for the best interests of the estate.
[Act of 1867. SEO. 17.
may, under such direction [i. e. of the court], compound and settle any such controversy by agreement with the other party, as he thinks proper and most for the interest of the creditors.]
To be obliged to litigate all of the contested claims arising in the settlement of an estate would prove a source of great expense and delay, which this section seeks to avoid by providing an economic and speedy mode by which the trustee may dispose of the same as advantageously as possible to the estate. Creditors, however, must have at least ten days' notice by mail of the proposed compromise of any controversy. (Sec. 58, a, 7.)
Assignee will not be authorized by the court to compound debts for the purpose of compromising the same under direction of a committee of creditors, where all creditors did not vote when such committee was appointed. (In re Dibblee, 3 N. B. R. 17; 3 Ben. 354; Fed. Cas. 3885.)
Sec. 28. Designation of newspapers.-a. Courts of bankruptcy shall by order designate a newspaper published within their respective territorial districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices required to be published by this Act and orders which the court may direct to be published shall be inserted. Any court may in a particular case, for the convenience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published.