Appellate Jurisdiction of the Supreme Court -Writ of Error. [Ch. IV.

2; act of June 8th, 1872, ch. 340; act of 1841, section 6; also R. S. sections 4,987 and 4,988; act of 1867, section 49; act of June 30th, 1870, ch. 177, section I.

Appellate Jurisdiction of the Supreme Court in Matters of Bankruptcy-Writ of Error.-The appellate jurisdiction of the Supreme Court with reference to a final decision of the Court of Appeals allowing or rejecting a claim; where controversies are certified to the Supreme Court from other federal courts, and where a review is had by virtue of a writ of certiorari, are best treated of under section 25b, c and d, where such methods of review are specifically referred to. The appellate jurisdiction referred to in the foregoing section, to wit: "appellate jurisdiction of controversies arising in bankruptcy proceedings" refers to the broader jurisdiction which is analogous to that exercised in other cases. The first and most important branch of appellate jurisdiction in this respect arises under writs of error to the highest courts of the States. The right of the Supreme Court to review the judgment of the highest court of a State by writ of error is set forth in section 709 of the U. S. R. S. which is as follows:

“A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against the validity, or where is drawn in question the validity, of a statute of, or an authority exercised under any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity, or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States and the decision is against the title, right, privilege, or immunity, specially set apart or claimed by either party, under such Constitution, treaty, statute, commission or authority-may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify, or affirm the judgment or decree of such State Court, and may, at their discretion. award execution or remand the same to the court from which it was removed by the writ."

It will be seen upon study of this section that a review of a decision of a State court may be had with respect to bankruptcy :

24.] General Appellate Jurisdiction of Circuit Court of Appeals.

First, where there had been a decision against the validity of any portion of the Bankruptcy Act; second, where a decision had been had by the State court sustaining a statute of the State claimed to be repugnant to the Bankruptcy Act; or third, where the right, title, privilege or immunity of any person claimed under the Bankruptcy Statute has been denied by a State court. Cases reviewing the decisions of State courts under the third classification are quite numerous, particularly where the effect of a discharge of a bankrupt has been brought in question. Such are Forsyth v. Vehmeyer (3 Am. B. R. 807; 177 U. S. 177); Hennequin v. Clews (111 U. S. 677); Strang v. Bradner (114 U. S. 555). It must be remembered in such cases that the federal question must be raised in the court below. (See Columbia Waterpower Co. v. Street Railway Co. 172 U. S. 475.) For the practice on a writ of error see Foster's Federal Practice.

While the power of the Supreme Court to review a final decision of a lower federal court conferred by the Act of March, 1891, commonly called the Evarts Act, is probably intended to be covered by section 25d, it is to be noted at this point that section 24a gives the Supreme Court appellate jurisdiction in bankruptcy proceedings " from the courts of bankruptcy" from which they have appellate jurisdiction in other cases.

General Appellate Jurisdiction of Circuit Court of Appeals.-Subdivision "a" of this section gives to the Circuit Courts of Appeals jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The appellate jurisdiction referred to here arises from section 6 of the Act of March, 1891, 20 U. S. Stat, 828, by which it is provided that the Circuit Courts of Appeals shall exercise appellate jurisdiction to review by appeal or by writ of error final decisions in the District Court and the existing Circuit Courts in all cases other than those provided for in section 5 of the same act, viz: (1) where the jurisdiction of the court is in issue; (2) from final judgments in a prize case; (3) in cases of conviction of a capital crime; (4) in cases which

Revisory Powers of the Circuit Court; History.

[Ch. IV. involve the construction or application of the Constitution; (5) in cases where the constitutionality of a law of the United States or treaty is drawn in question; (6) in any case in which the constitution or law of a State is claimed to be in contravention of the federal constitution, all of which are cases in which an appeal may be certified directly to the Supreme Court. This general jurisdiction on appeal would include a writ of error to the Circuit or District Court on a judgment rendered by such court upon "a controversy " arising out of bankruptcy but will be seldom applied on account of the specific provision contained in section 24b and 25a respecting appellate jurisdiction in strict bankruptcy proceedings. It may, however, be applicable in the case where by reason of diverse citizenship an action is brought by or against a trustee in the Circuit Court, or is brought by consent in the District Court.

Revisory Powers of the Circuit Court; History. Section 24b.The former Bankruptcy Acts of 1841 and 1867, provided that the Circuit Courts should have certain revisory powers over the proceedings of the courts of bankruptcy. Under the Act of 1841 that revisory power could be exercised whenever the court of bankruptcy itself cared to adjourn any point or objection into the Circuit Court to be there heard and determined. (In re Christy, 3 How. 292; Clark v. Binninger, Fed. Cas. 2,815; 7 Blatch. 159; s. c. 3 N. B. R. 487.)

The Act of 1867, by section 2 (R. S. section 4,986), gave to the Circuit Court for each district "general superintendence of all cases and questions arising in the District Court for such district when sitting as a court of bankruptcy," and further provided that "except when special provision was otherwise made, such circuit courts might, upon bill, petition or other proper process presented by any party aggrieved, hear and determine the case as in a court of equity." During the pendency of the legislation in Congress which resulted in the present bankruptcy bill, provisions giving Circuit Courts of Appeals this revisory power were incorporated and adopted, only to be stricken out, and then

§ 24.]

Revisory Powers of the Circuit Court; History.

to be re-incorporated in the law as finally adopted. The objection to giving these courts this power was that it would tend to delay proceedings in bankruptcy and to increase expense.

The revisory power given to the Circuit Court of Appeals under this section must be carefully distinguished from the appeal which is authorized by the Act of 1891 and section 25. In case of appeals in equity the facts as well as the law are before. the court for review. But under this section all that is contemplated is a summary review of any erroneous holding upon a question of law and it does not in any sense contemplate a review of the facts. (See In re Rouse, Hazard & Co. 1 Am. B. R. 234; 33 C. C. A. 356; 91 Fed. 96; in re Purvine, 2 Am. B. R. 787; 37 C. C. A. 446; 96 Fed. 192; in re Richard, 3 Am. B. R. 145; 37 C. C. A. 634; 96 Fed. 935; Courier Journal etc. Printing Co. v. Brewing Co. [C. C. A.] 4 Am. B. R. 183; 101 Fed. 699; in re Abraham, 2 Am. B. R. 266; 35 C. C. A. 592; 93 Fed: 767.) The petition under section 24b should state specifically the question of law which was involved and ruled upon by the court below, and should be accompanied by a certified copy of so much of the record as will exhibit the manner in which the question arose and its determination. (In re Richards, supra.) No official form of petition has been prescribed. Section 25a on the other hand contemplates an appeal in equity on the three subjects therein stated, to wit: (1) an adjudication on the question of bankruptcy; (2) on the question of discharge; (3) on the debt or claim of $500 and upwards. It has been held that it was the intention of Congress in prescribing the method in which a judgment adjudicating a person a bankrupt may be reviewed, to make it impossible to review such a judgment on an original petition in the mode prescribed in section 24b. (In re Good, 3 Am. B. R. 605; 39 C. C. A. 581; 99 Fed. 389.) Such supervisory jurisdiction extends only over strict bankruptcy proceedings. (In re Jacobs, 3 Am. B. R. 671; 39 C. C. A. 647; 99 Fed. 539.) There seems to be no time specified within which such petition can be reviewed. Neither the statute nor the rules appear to fix the time within which such petition should be taken. G. O. 36 refers to the al

Appeals and Writs of Error.

[Ch. IV. lowance of appeals. But in this connection the following statement of Mr. Justice Strong in Bank v. Cooper (20 Wall. 171), in construing a similar provision of the Act of 1867, is very instructive:

"It is true their bill was not filed in the Circuit Court until about four months and a half after the order complained of was made. But the Act of Congress prescribes no time within which the application for a review must be presented. An appeal is required to be taken within ten days. Not so with a petition or bill for a review. Undoubtedly the application should be made within a reasonable time, in order that the proceedings to settle the bankrupt's estate may not be delayed, but neither the act of Congress nor any rule of this court determines what that time is. At present, therefore, it must be left to depend upon the circumstances of each case. Perhaps, generally, it should be fixed in analogy to the period designated within which appeals must be taken. (Littlefield v. Del. & Hud. Can. Co. 4 N. B. R. 77; Fed. Cas. 8,400.)"

In the case of In re Worcester County (4 Am. B. R. 496; 102 Fed. 808), it was held that as there is no statutory limitation fixing the time for review of matters arising on the face of the record, a petition for review is limited by analogy to the six months allowed by statute for taking appeals generally to the Circuit Court of Appeals. But this seems to be an erroneous decision because the time for taking the appeal in bankruptcy is limited by section 25 to ten days. (See In re Good, supra.)

SEC. 25. Appeals and Writs of Error.-a That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals of the United States, and to the supreme court of the Territories, in the following cases, to wit, (1) from a judgment adjudging or refusing to adjudge the 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 five hundred dollars or over. Such appeal shall be taken within ten days after the judg