Wingert v. Smead
WINGERT Et Al. v. SMEAD Et Al. (Five Cases)
Opinion
PER CURIAM.
These are appeals from orders allowing fees to special master, trustee, receivers, at *352 torneys for petitioning creditors, and attorneys for receivers in bankruptcy proceedings. Tbe orders appealed from were entered in tbe District Court September 2-1, 1933. Petitions for appeal from tbe orders were filed with tbe District Judge and appeals were allowed by him. The records in two of tbe appeals were filed in tbis court on December 26, 1933, and the others on January 1, 1934. No appeal under section 24b of the Bankruptcy Act as amended (11 USCA § 47 (b) bas been allowed by this court in any of the eases and no petition for the allowance of such appeal has been filed with the court. The cases are before us on motions to dismiss the appeals.
The motions to dismiss must be allowed. Tbe orders appealed from were not entered in controversies arising in bankruptcy but in tbe course of the bankruptcy proceedings; and hence were not appealable under section 24a of tbe Bankruptcy Act, as amended (11 USCA § 47 (a). They were not orders (1) adjudging or refusing to adjudge a defendant a bankrupt, or (2) granting or denying a discharge, or (3) allowing or rejecting a debt or claim of $500 or over; and hence were not appealable under section 25a, as amended, 11 USCA § 48 (a). They were reviewable only on appeal, allowable in the discretion of this court, to superintend and revise under section 24b of the Bankruptcy Act, as amended, 11 USCA § 47 (b). Calhoun v. Stratton (C. C. A. 6th) 61 F.(2d) 302 ; Shoreland Co. v. Conklin et al. (C. C. A. 5th) 30 F.(2d) 489 ; Broders v. Lage (C. C. A. 8th) 25 F.(2d) 288 ; Raich v. Olson (C. C. A. 8th) 25 F.(2d) 865 ; Remington on Bankruptcy (4th Ed.) vol. 6, § 2710, vol. 8, § 3770. An allowance to attorneys for petitioning creditors or receivers cannot be held an order allowing a claim within the meaning of section 25a, 11 ÚSCA § 48 (a), for the reason that “claim” as there used refers to debts presented for proof against tbe bankrupt’s estate, not to demands arising out of the course of administration. Holden v. Stratton, 191 U. S. 115, 118 , 24 S. Ct. 45 , 48 L. Ed. 116 ; Calhoun v. Stratton, supra; Gate City Clay Co. v. Dickey (C. C. A. 8th) 39 F.(2d) 581 ; W. J. Davidson & Co. v. Friedman (C. C. A. 6th) 140 F. 853 ; In re Mueller (C. C. A. 6th) 135 F. 711 .
As the records in these cases were not docketed in this court until more than thirty days after the orders complained of, we need not consider whether they might have been treated as petitions for appeal to be allowed within the discretion of tbe court under section 24b, 11 USCA § 47 (b) if they had been filed with the court within the thirty day period.
Appeals dismissed.
On Petition for Rehearing.
A petition for rehearing in tbe above eases urges that technicalities be disregarded and that the appeals be entertained without regard to the fact that the statute which we think applicable has not been complied with. The answer to this is that compliance with the statute is jurisdictional. We have no discretion to entertain appeals which are not taken in accordance with the statute which gives us appellate jurisdiction. The petition for rehearing will be denied.
Rehearing denied.
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