David L. Skinner & Co. v. Nantasket Beach Steamboat Co.

WILSON, Circuit Judge. This is a petition for leave to appeal under section 24b of the Bankruptcy Act, as amended May 27, 1926, 11 USCA § 47 (b), from orders of the bankruptcy court for the District of Massachusetts. The petition consists of a mere statement that the petitioners consider themselves aggrieved by an order made and entered in the District Court of Massachusetts on June 19, 1933, and by an order made and entered in said court on the 26th day of June, 1933, from which they hereby appeal for reasons specified in an assignment of errors filed in tills gourt with the petition, and praying that the appeal be allowed and that a transcript of the record, proceedings, and papers upon which the proceedings were based, duly authenticated, be sent to this court. What the nature of the case is in which the orders were made, except for the title of the case, or what the nature of the orders were, so far as anything contained in the petition, this court is left in ignorance. Prom the assignment of errors, however, an inference may be drawn that upon the filing of a petition in bankruptcy the alleged bankrupt and certain receivers appointed in the superior court of Massachusetts appeared and answered, whereupon a motion was filed by the petitioners that the issues raised by the petition and answer's be heard and determined as soon as may be, but that the District Court refused and ordered the hearing “not to be held before September 15, 1933.” There was also filed a document purporting to be a “Statement of the Case,” signed by the solicitors of the petitioner's, but not under oatb, setting forth in skeleton form wbat transpired in the District Court. Not being under oath, this court cannot be compelled to take cognizance of any facts set forth therein. What the facts were on which the District Court made its orders, and whether the petitioners were thereby aggrieved, this court cannot determine from the petition and assignment of errors alone. A petition for leave to appeal under section 24b, which right must be exercised in the manner and form of an appeal, should set forth sufficient facts under oath to make it appear that the petitioners may have been aggrieved by the rulings of the District Court, and if the petitioners propose to ask this court to determine the issue on appeal at the same time it hears the petition, in ease an appeal is allowed, the petition should be accompanied by a transcript of the record in the District Court duly authenticated, and the record forwarded to this court be made as full as though the case came up on appeal under section 24a or section 25, 11 USCA- § 47 (a) or § 48, and due notice given to the opposite party of the petitioner’s intent. A regular course of proceeding in such case should be established. While this court has adopted no rule covering the proceedings in such eases, a petitioner should either state sufficient facts in his petition under oath, together with the ruling of the court, accompanied by an assignment of errors, or, if desirous of an immediate hearing on the appeal, if allowed, should accompany Mis petition by a transcript of the record in the District Court duly authenticated. Brown’s Guide, § 740. The petitioners in this ease have done neither. But while the petition and “Statement c£ the Case” do not comply with what we think should be the practice under section 24b of the Bankruptcy Act, since the petitioners may not have sufficient time to file a new petition under section 24b after the filing of this opinion, Broders v. Lage (C. C. A.) 25 F.(2d) 288, and since an order continuing ihe hearing on the petition in bankruptcy and the respondents’ answers to an indefinite date more than three months beyond the completion of the pleadings, may be in violation of section 18d, 11 USCA § 41(d) of the act, which requires the issues raised by the petition and answers to be determined “as soon as may be,” see Adams v. Foster, 5 Cush. (Mass.) 156; Bentley v. Ward, 116 Mass. 333; Silverstein v. Daniel Russell Boiler Works, 254 Mass. 137, 140, 149 N. E. 705, and the petitioners may he aggrieved thereby, and as counsel have, we think, so- far agreed upon certain facts sufficient to warrant this court in its discretion to allow an appeal, the appeal is allowed; but before passing upon the issues raised by the „ assignment of errors, a transcript of the record in the District Court, as in case of an appeal under section 24a, and. section 25, must he transmitted to this court. Hyman v. Meifert (C. C. A.) 57 F.(2d) 861. Inasmuch as both parties at the hearing on the petition stated orally and fully the facts out of which these proceedings arose, and as to the material facts there was no sub [438] stantial disagreement, and counsel on both sides then presented their respective contentions by oral argument, and respondents’ counsel was granted further time to file a brief on the single question of law involved, viz., whether a postponement of a hearing on the issues raised by a petition in bankruptcy and the answer thereto for more than three months and without fixing a definite date thereafter for such hearing, is a violation of section 18d of the act; now when the record is completed and filed in this court, the ease may be treated as submitted on the oral arguments heretofore presented and the briefs already filed. Permission, however, is granted to both parties to file further briefs within ten days after the record is filed in this court. An appeal is allowed as prayed for.