Buckingham v. Estes

EURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. The trustee has entered a motion here to dismiss the petition of Mrs. Estes, the appellee, because she is a married woman, and can — 586 — not sue'in her own name without the intervention of a trustee or next friend. Without regard to the merits of this motion, such an objection cannot for the first time be taken upon appeal. Rankin v. Warner, 2 Lea, 302. No objection was taken below, and no en-or has been assigned. The motion is therefore denied. He has also moved to dismiss her suit because her husband, the bankrupt, who was made party, did not answer, and no decree pro cpnfesso- was taken. This is equally untenable. No such objection wás made below, and no error has been assigned because the court proceeded to a decree without a pro confesso against the bankrupt. As the bankrupt had scheduled the property sought to be recovered as' his own, the legal title vested in his trustee, who did answer and defend. The bankrupt was therefore not an indispensable party to the petitioner’s suit. A formal objection of this kind cannot for the first time be made in this court. Story v. Livingston, 13 Pet. 359, 10 L. Ed. 200; Carey v. Brown, 92 U. S. 171, 23 L. Ed. 469. The first error assigned is that the court erred in allowing Mrs. Estes’ claim for rents and profits against the bankrupt, because the claim was not proved within one year after adjudication of bankruptcy, as required by section 5711, Bankr. Law (Act July 1, 1898, c. 541, 30 Stat. 561 [U. S. Comp. St. 1901, p. 3444]. One insurmountable objection to this assignment is that the date of adjudication nowhere appears in the transcript of the record. The counsel for appellee called attention to this defect in a printed brief bearing the file mark of November 24, 1903. This cause was not heard until February 8, 1904, yet no step was taken to supplement the transcript so as to show the date of adjudication. The presumptions are in favor of the correctness of the action of the court below, and if we are to reverse it must be upon a transcript which will affirmatively show the ground upon which the action complained of was taken. But if we assume that the formal proof of Mrs. Estes’ claim for rents and profits, filed January 15, T903, was not made until more than one year after date of adjudication, it does not appear, and it is not claimed, that her petition setting up her claim in the bankrupt proceeding was not filed within one year after the adjudication. It would be a narrow construction of sections 57 (30 Stat. 560 [U. S- Comp. St. 1901, p. 3443]) and 57n which would not regard a claim so presented and litigated in the bankrupt proceeding as “proven” within the limitation of the section. A claim “proven” within the year is amendable after the lapse of the year, and the court below probably regarded her petition as'.a “statement under oath, in writing, signed by a creditor, setting forth the claim,” etc., and therefore subject to amendment, to comply with the further formalities of section 57. In this the court did not err. Hutchison v. Otis, 190 U. S. 552, 555, 23 Sup. Ct. 778, 47 L. Ed. 1179. • The-solicitors for the appellant, in their brief, present an argument against any allowance of the claim for rent, based upon the contention. that Mrs. Estes permitted her husband to collect and hold and use these rents fot his own purposes, without at any time objecting or callingihijn to account. The liability of the bankrupt to the petitioner ■for .the rents collected as trustee was adjudged-by the decree of Oc — 587 — tober 15, 1902, and the only matter referred to the master was the amount of such rents. The decree.1 of March 28, 1903, confirmed the report settling the amount. The appeal is from the last decree. This was the final decree, and a general appeal would undoubtedly open up all prior decrees of an interlocutory character. There is, in view of the terms in which this appeal was prayed and allowed, room for regarding the appeal as limited to the question of the amount of the rents collected by the bankrupt as trustee for his wife. But, waiving this, the effect of the rule requiring an assignment of error to be filed in the court below, before the appeal is allowed operates in itself as a limitation of the appeal. No error was assigned which raises any questiop of the rightness of the decree below, holding that the petitioner was entitled to recover the tract of land she sued for, or the liability of the bankrupt to account to her as trustee for the rents he had collected on her land. Every error assigned, except the first, that the claim had not been proven within one year after adjudication, goes exclusively to the amount of rents collected. This is a fatal objection to the consideration of any other question. The errors assigned from 2 to 9, inclusive, complain that the master and the court erred in respect to the amounts of rent shown to have been collected. This raises a question of the weight or sufficiency of evidence. The master and the court below concurred in the finding of facts, and when that is the case this court will not reverse or modify, unless a very plain mistake is definitely pointed out. Furrer v. Ferris, 145 U. S. 132, 12 Slip. Ct. 821, 36 L. Ed. 649; Camden v. Stuart, 344 U. S. 104, 12 Sup. Ct. 585, 36 L. Ed. 363; Kiewert v. Juneau,, 78 Fed. 712, 24 C. C. A. 294; Turley v. Turley, 85 Tenn. 251, 1 S. W. 891. The question was one peculiarly proper for an accounting, and we-see no sufficient reason for disturbing the results reached below. Certainty no plain mistake of either law or fact has been pointed out. The result must therefore be the affirmation of the decree, which is accordingly ordered.