In re WHITENER. RODGERS v. RAMSEUR et al., 105 F. 180

PARDEE, Circuit Judge (after stating the facts). As the property, the ownership of which is in dispute, was in the possession of the trustee in bankruptcy as a part of bankrupt’s property to be duly administered, the district court had jurisdiction to issue an injunction restraining the proceedings under a sequestration issued from the district court of Bowie county, Tex., at the suit of Ramseur, plaintiff, against Rodgers, trustee, and to compel the return of the property to the trustee. See White v. Schloerb (decided in the supreme court May 28, 1900) 20 Sup. Ct. 1007, 44 L. Ed. 1183.

The property being in the custody of the district court sitting in bankruptcy, that court had jurisdiction to entertain the intervention filed by Bamseur, claiming tbe property, and to hear and determine the issues, presented by the intervention, not only on general prin ciples (see Morgan’s L. & T. R. & S. S. Co. v. Texas Cent. Ry. Co., 137 U. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625), but under tbe specific provisions of

section 2 of the bankruptcy act of 1898, as follows: “That the courts of bankruptcy as hereinbefore defined, viz. the district courts of the United States in the several states, the supreme court of the District of Columbia, the district courts of the several territories, and the United States courts in the Indian Territory and the district of Alaska, are hereby made courts of bankruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they are now or may be hereafter held, to * * * (0) bring in and substitute additional persons or parties in proceedings in bankruptcy when necessary for the complete determination of a matter in controversy; (7) cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided: * * * (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act. * * * Nothing in this

section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.” Tbe jurisdiction of tbe district court, as tbus granted, is unquestionably bankruptcy jurisdiction, and not general jurisdiction to bear and determine controversies between adverse parties. Tbe right to appeal from tbe decision of tbe district court in bankruptcy proceedings is given in tbe bankrupt law of 1898 (section 25), in tbe following cases:

(1) From a judgment adjudging or refusing to adjudge tbe defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of $500 or over. Tbe property in dispute was not surrendered by tbe bankrupt.

It came into tbe possession of tbe bankruptcy court on an order of tbe referee declaring it to be a part of tbe bankrupt’s estate, and tbe proceeding below was a suit to recover tbe property from tbe trustee as property that belonged to the plaintiff, and not to tbe bankrupt’s estate, and tbe judgment of tbe court is one declaring tbe plaintiff’s ownership, and ordering a restitution of tbe property, with costs. Tbe question presented on tbe motion to dismiss is whether this judgment of restitution is a judgment allowing or rejecting a debt or claim of $500 or over.

It is not contended that it is a debt, but it is contended that it is a claim, within tbe meaning of tbe statute. The word “claim,” as used in the above connection, — “debt or claim of $500 or over,” — seems to mean a moneyed demand, tbe same as “debt,” and was used, not to enlarge, but to render certain. Tbe word “debt,” as defined in tbe ijrst

section of tbe statute, includes any debt, demand, or claim provable in bankruptcy. Tbe word “claim,” although frequently used in the bankruptcy act, is not specifically defined; but

section 57 of tbe act is, entitled, “Tbe Proof and Allowance of 'Claims,” and tbe word as therein used in every instance refers to, and means only, a moneyed demand. Paragraph “k” of tbe section, is to tbe effect that claims which have been allowed may be reconsidered for cause¡ and reallowed or rejected, in whole or in part, according to the equities of the case, before, but not after, the estate has been closed.

To give the word “claim” the broad meaning contended for would be to practically enlarge the statute so as to give the right of appeal in every disputed claim involving $500 or over occurring in the administration of the bankrupt’s estate; for all con(:ests therein, including questions of discharge of the bankrupt and selling property, can easily be shown to be claims, within the broad meaning of the word “claim,” — a demand or supposed right.

The proceeding in the court below was a proceeding in the administration of the bankrupt’s estate, and was in no proper sense a proceeding to allow or reject a debt or claim against the bankrupt’s estate, and we are inclined to the opinion that, in matters of administration in the bankruptcy court, outside of the question of bankruptcy vel non, the discharge of the bankrupt, and the allowance of debts or demands over $500, no appeal is allowed or contemplated by the bankruptcy law of 1808.

It is, however, contended that, if no right of appeal exists, then tlie application for an appeal, as perfected in this case, may be treated as a petition in equity to revise, under paragraph “b,” § 24, to the effect that the several circuit courts of appeals shalbhave jurisdiction in equity, either interlocutory or otherwise, to superintend or revise in matters of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction; such power to be exercised on due notice and petition by any party aggrieved. Judge McCormick, speaking for this court in Re Abraham, 35 C. C.

A. 608. 609, 93 Fed. 783, 784, said: “The riglit of appeal, as given by the statute, can neither be enlarged nor restricted by the district court or by this court. The regulation of appeals is a regulation of jurisdiction. It was not without purpose, therefore, that the exercise of the superintending jurisdiction of this court is not placed by the act under specific regulations and restrictions, like the proceeding by appeal or writ of error.

It seems clear to us. from a consideration of the various provisions of the act, and particularly of the clause conferring, superintending, and revising jurisdiction on this court, that it was the intent of congress that the exercise of such-jurisdiction could be easily invoked by any party aggrieved, and should he freely exerted by the circuit court of appeals, without the hindrance of technical trammels.

In analogy to the rule prescribed for allowing appeals, and to the practice in allowing writs of error in cases at law, the petition for revision may be presented to, and allowed by, a judge of the court, of bankruptcy, or any one of the judges of this court. It should, with reasonable clearness, show the action of the court which it seeks to have revised in mailer of law, and reasonable notice thereof should be given to the adverse party.

The appeal prayed for, allowed, and perfected in this case, bringing up, as it does, the record of the pleadings, which present all the facts, either verified by tlie petitioning creditors, whom the appellee represents, and cannot be allowed to dispute, or averred by Bernlieimer, and admitted by the demurrer, showing all of the action of the judge thereon, including the last order from which the appeal was taken, may embrace more than it was necessary to put Into a petition for revision; but it clearly does embrace a sufficient statement of the facts and action of the court thereon sought to- be revised in matter of law.

No question has been raised, or can be raised, as to the sufficiency of the notice. It is apparent from the proceedings that the appeal was prayed for and allowed in open court, in the presence of all the parties or their attorneys. at the very instant that the judgment sought to be revised was announced. They thus had, or must be charged with, due notice. We conclude that the motion to dismiss the proceedings in this court should not be granted.

We could, did we deem it necessary, permit the party aggrieved now to file his petition for the revision he seeks, and, upon due or reasonable notice thereof being given to all parties entitled thereto, proceed thereon in the exorcise of our jurisdiction; We have not deemed it necessary or meet in this case to have resort to that course, but have proceeded to consider the case on its merits, in like manner as if a formal petition had been presented and due notice thereof given. We may not feel justified in exercising our discretion to the same extent in all eases which may be brought to us in the future.

The proceedings in this ease in the district court were had before the general orders in bankruptcy took effect, or had been widely published, and become generally known to parties or counsel, or the judges of the inferior courts.

The provisions of the act with reference to appeals to this court, and to obtaining the superintendence and revision it may exercise, are, in a measure, new, and precedents under the former law, if they were uniform (which they are not), could not be safely followed.” If, following this precedent, we should be disposed to treat the appeal herein as a petition in equity, the following difficulty presents itself: Under the express provisions of the statute, on a petition in equity to revise proceedings, only questions of law can be considered in the appellate court, and on this appeal the questions presented all involve matters of fact; no specific' questions of law, as ruled by the district court, being assigned as erroneous.

It seems clear that this court has no jurisdiction in this case, either on appeal or on a petition to revise. The appeal is dismissed.