the expiration of the prescribed year, where it is sought thereby to set up additional grounds newly discovered.32 § 2824. Revocation to Be Applied for within Year after Discharge Granted. The application must be made within the year after the granting of the discharge.33 Obiter, In re Shaffer, 4 A. B. R. 730, 104 Fed. 982 (D. C. N. Car.): "Where the petition is not filed within one year, it is absolutely barred by the statute." § 2824. Whether Appeal Lies.-Questions arising as to revocation of discharge are proceedings in bankruptcy and not "controversies arising in bankruptcy proceedings," within the meaning of §§ 23, 24, 25.34 But it has not been authoritatively determined whether they are appealable or not.35 32. In re Wright, 24 A. B. R. 437, 177 Fed. 578 (D. C. N. Y.); [1867] In re Sims, 9 Fed. 440 (D. C.); [1867] Mall v. Ullrich, 37 Fed. 653 (D. C.). 33. In re Meyers, 3 A. B. R. 722, 100 Fed. 775 (D. C. N. Y.); obiter, In re Oleson, 7 A. B. R. 22, 110 Fed. 796 (D. C. Iowa); In re Cuthbertson, 29 A. CHAPTER LV. PARTIES ON APPEAL, REVIEW AND ERROR. Synopsis of Chapter. § 2825. Proper Parties on Appeal, Review and Error in General. § 2826. Must Have Substantial Interest in Controversy. § 2827. Must Be in Trustee's Name, if in Behalf of Estate and after Election of Trustee. § 2828. Except When Controversy About Trustee's Own Compensation or Expenses or Report on Exemptions. § 2829. Or, When About Own Conduct, or Administration. 2830. Trustee Refusing May Be Ordered, or Creditor Be Authorized to Use Trustee's Name. § 2831. Court May Require Creditor to Indemnify Trustee. § 2832. Laches May Bar Right to Object to Other than Trustee Appealing. § 2833. Before Election of Trustee Appeal, Review or Error May Be by Creditor. § 2834. Appeal by One Party Does Not Necessarily Bring Up Case as to All. § 2835. Appeal Not Dismissed for Lack of Necessary Parties Where Not Parties below but Represented by Trustee. § 2836. Joint Appeal. § 28362. Intervening Creditors on Appeal. § 2837. Omitted Parties Made Parties on Appeal. § 2838. Creditors Assenting to Composition, Necessary Parties on Appeal from Confirmation. § 2825. Proper Parties on Appeal, Review and Error in General. -The rules as to who are and who are not proper parties on appeal, review and error proceedings in bankruptcy follow in general the usual rules of federal procedure. 1 § 2826. Must Have Substantial Interest in Controversy.-Parties on appeal, review and error must have a substantial interest in the controversy; and where the appellant loses such interest pending the appeal, as by payment or otherwise, the petition will be dismissed.2 But a creditor's claim need not necessarily have been allowed.3 § 2827. Must Be in Trustee's Name, if in Behalf of Estate and after Election of Trustee.-All action and defense, as well on appeal, on review and in error proceedings as elsewhere, in behalf of the estate, after the election of the trustee, must be taken in the name of the trustee.1 1. In re Baker, 4 A. B. R. 778, 104 Fed. 287 (C. C. A. Mass.). 2. In re Baker, 4 A. B. R. 778, 104 Fed. 287 (C. C. A. Mass.). 3. Allgair v. Fisher, 16 A. B. R. 278, 143 Fed. 962 (C. C. A. N. J.). 4. Foreman v. Burleigh, 6 A. B. R. 230, 109 Fed. 313 (C. C. A. Mass.). 3 R B-24 Dissenting opinion of Sanburn, J., in “The Chatfield v. O'Dwyer, 4 A. B. R. 313, 101 Fed. 797 (C. C. A. Ark.): obvious purpose of these provisions of the act is to enable the trustee of a bankrupt's estate to take the proper and necessary steps to object to the allowance of a false or fictitious claim, and to take the proper steps to vacate the allowance of any such claims when they have been allowed, and the fact of their invalidity comes to his knowledge. The office of a trustee under the present Bankrupt Act is entirely analogous to that of assignee under the bankrupt law of 1867. The trustee is elected by, and is the representative of, the creditor; and, following the general analogies of the law, he is the appropriate person to see that no unjust or fictitious claims are allowed to be paid out of the assets in his hands. His duties are very similar to those of an administrator or executor. It is his duty to ascertain that all claims presented for allowance, or that may have been allowed, are genuine; and under subdivision 6, rule 21, of the rules in bankruptcy formulated by the Supreme Court of the United States, the trustee has been empowered to file a petition with the referee to have any claim further investigated, when for any reason he may desire a re-examination of the same. Furthermore, if one creditor of a bankrupt may prosecute an appeal, under § 25 of the bankrupt law, from the allowance of a claim, then any other creditor may take a like appeal upon the same or different grounds, and this court may be required to entertain a number of appeals, all of which are brought to test the validity of the same demand.” Compare, obiter, Gray v. Mercantile Co., 14 A. B. R. 780, 138 Fed. 344 (C. C. A. N. Dak.): "But one may be before a court so as to enable it to adjudicate his rights, and yet not be an actual party to the proceeding; as when he is represented by a receiver or trustee who is an actual party, and whose duty it is to protect his interests. ***By the decree challenged by this appeal it was adjudged that the claims of Murphy, McNamara, Blair and Lynch represent legitimate expenses and costs of administration; that the claim of Carroll, while not of this character, is yet a lawful one, and entitled to priority; and that each of these claims is properly payable out of the bankrupt's estate. The question whether the decree shall stand or be reversed is obviously of direct interest to the claimants whose claims are sustained by it, and because of this interest the question cannot be determined without affording these claimants an opportunity to be heard in defense of the decree. *** The only parties respondent to this appeal are two general creditors. The citation is directed to them only. The reason for their presence lies in the fact that it was upon their objections that the claims of Porter and the trustee were partially disallowed. Murphy, McNamara, Blair, Lynch and Carroll are not before this court as actual parties, and are not represented by any one who is an actual party. The trustee is not their representative. He is seeking to strike down the allowance of their claims, and in this is the representative of the general creditors of the estate. Chatfield v. O'Dwyer, supra. Of course he cannot represent or speak for both sides to the controversy." Sawy. 56; In re Lewensohn, 9 A. B. R. 368, 121 Fed. 538 (C. C. A., referred to In re Koenig & Von Hoogenhuyze, 11 A. B. R. 619, 127 Fed. 801); In re Levy, 7 A. B. R. 56 (Ref. N. Y.). Compare, to same effect, Viquesnay v. Allen, 2 A. B. R. 402, 131 Fed. 21 (C. C. A. W. Va.); compare, to effect that trustee represents all creditors on appeal, In re Utt, 5 A. B. R. 383, 105 Fed. 754 (C. C. A. Ills.). Contra, and that any person aggrieved may appeal, and that one creditor may appeal from allowance of another creditor's claim, obiter, In re Roche, 4 A. B. R. 369, 101 Fed. 958 (C. C. A. Tex., distinguished in Foreman v. Burleigh, 6 A. B. R. 230, 109 Fed. 313, C. C. A. Mass.). Contra, McDaniel v. Stroud. 5 A. B. R. 685, 16€ Fed. 486 (C. C. A. S. C.). |