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The order entered by the court upon the motion of the defendants to dissolve in part and modify the injunction of May 26, 1908, is in the following language:
"And the court, now being advised of its decision, in accordance with its written opinion filed in this cause at Philippi, September 21, 1909, delivered for convenience of court and counsel in open court at Wheeling, September 21, 1909. doth overrule the said motion of the served defendants for a partial dissolution and correspondent modification of said temporary injunction of May 26, 1908, as made by said defendants December 15, 1908, and the court doth hereby continue in full force and effect in all respects the temporary injunction heretofore awarded in this cause, until the further order of the court."
After considering the point involved, and the argument orally, and by briefs of counsel, we have come to the conclusion that under the law an appeal from the order of the Circuit Court entered December 15, 1909, in this case denying the motion of defendants to dissolve in part and modify the injunction granted on May 26, 1908, does not lie. We might stop here and dismiss the appeal, but we think it well to give at least a brief statement of the grounds upon which our conclusion is based. Our views upon the question are so well expressed in the case of Dreutzer v. Frankfort Land Company et al., 65 Fed. 642, 13 C. C. A. 73, that we take the liberty of quoting from that case. ceeding which had been taken in that case was substantially the same as here. The Frankfort Land Company et al. had filed a bill in the Circuit Court of the Sixth Circuit, and on the 23d of January, 1894, an injunction had been granted against Dreutzer restraining him from prosecuting certain proceedings at law. Subsequently, on the 2d of March, 1894, the defendant moved to dissolve the injunction on the same grounds upon which he had originally opposed it, and on the additional ground that sureties on bond of complainant were insufficient. This motion was denied by an order entered March 9, 1894. An appeal was taken from this last order on the 6th of April, 1894. The Circuit Court of Appeals for the Sixth Circuit, Taft, Circuit Judge, delivering the opinion, after stating the facts and inserting a copy of section ✓ of the Circuit Court of Appeals act, says:
"The section introduced into federal appellate procedure a novelty. Before its enactment, there was no method of reviewing on appeal an interlocutory order or decree of the District or Circuit Courts. Congress accompanied this remedial provision with the condition that it should be taken advantage of by the aggrieved party within 30 days after it accrued. The condition is to be given effect, and is not to be made nugatory by a construction which would put it in the power of the aggrieved party to extend the limitation indefinitely. It is clear, therefore, that when, after a hearing of both sides, an injunction has been granted by the circuit court to continue in force for a fixed time as, for example, until a bearing on the merits—the enjoined party cannot, after the expiration of 30 days from the order granting the injunction, acquire a new right of appeal by the filing of a motion to dissolve the injunction, and an order of the court denying the motiov. Such an order neither grants nor continues the injunction within the meaning of section 7 of the act. Even if such order is made, the injunction remains in force until the time fixed in the order granting it for its expiration. And the denial of the motion to dissolve the injunction adds nothing to its force or effect."
As the decision in the Dreutzer Case, which we have cited, and from which we have quoted, was rendered in 1895, it may be suggested that
the amendments of June 6, 1900, and April 14, 1906, to section of the Circuit Court of Appeals act, may have the effect to weaken the force of it, but upon examination of the original statute and the amendments it will be seen that, so far as the point involved in the Dreutzer Case and the case before us is concerned, the statute as originally passed, and as amended, is substantially the same.
We do not deem it necessary to further discuss the proposition. The appeal is dismissed.
In re T. A. MCINTYRE & CO.
(Circuit Court of Appeals, Second Circuit February 8, 1910.)
1. BANKRUPTCY (8 328*) — ADMINISTRATION OF ESTATE - CLAIMS TO ASSETS
POWER OF COURT.
A court having as a necessary incident to its power to administer a bankrupt's estate the power to summarily dispose of claims to assets in its possession may limit the time for claimants of funds to prove their title to less than the year which the statute allows for the proof of claims of creditors, providing notice be given to the claimants and a reasonable time afforded them.
(Ed. Note.—For other cases, see Bankruptcy, Dec. Dig. § 328.*] 2. BANKRUPTCY ($ 328*)-ADMINISTRATION OF ESTATE_CLAIM TO FUNDS-TIME
Where a claim of title to a fund in the possession of trustees in bankruptcy was not presented till nearly 11 months after the time fixed for such claims had expired, during which time the referee had passed on all claims to title and was ready to file a report, and the affidavit of the petitioner's attorney does not state of whom he inquired nor the information he got, as to the possession by the trustees of the fund he claimed, nor whether he could not have sooner obtained the necessary information by the exercise of ordinary diligence, the court did not abuse its discretion in denying a motion to permit him to file his claim.
[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. $ 328.*] Appeal from the District Court of the United States for the Southern District of New York.
In the Matter of the Bankruptcy of T. A. McIntyre & Co. From an order denying the petition of Edward Pierce for leave to file a claim of title against moneys and securities in the hands of the trustees after the time for filing such claims fixed by the court had passed, he appeals. Affirmed.
Charles O. Brewster (S. J. Rosensohn, of counsel), for appellant.
Irving L. Ernst and D. Raymond Cobb (M. N. Schwarzschild, of counsel), for appellee.
Before LACOMBE, WARD, and NOYES, Circuit Judges.
WARD, Circuit Judge. April 10, 1908, Edward Pierce, the peti, tioner, bought through McIntyre & Co. 100 shares of Great North, ern preferred stock which he paid for and left in their hands. They wrongfully sold the same and deposited the proceeds in their account *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexos
in the National Bank of Commerce. May 21st McIntyre & Co. were adjudicated bankrupts. They had borrowed $200,000 from the bank upon various securities as collateral, a large part of which the bank sold out under the collateral note. After applying the balance to the credit of the bankrupt and the proceeds of sale of the securitie there remained in the hands of the bank $32,177.62 in cash and certain securities. May 26th the court ordered the bank to pay over the cash and securities to the receivers, which was done, and also ordered all persons making any claim thereto to file their claims on or before June 26th in the office of the referee or be forever barred. May 15, 1909, the petitioner, upon the affidavit of his attorney that he had inquired in June, 1908, whether the stock or its proceeds had reached the hands of the receivers and been informed that they had not, but that recently he had received information indicating that a part of the proceeds of the stock was on deposit in the bank, moved for leave to prove his right to share in the fund, notwithstanding the fact that the time fixed for so doing had expired. This motion the court denied, as made too late.
The petitioner contends that the court had no power to so limit the time for claimants of the fund to prove their title, because the bankruptcy act permits claims of creditors to be filed within a year from the adjudication. But the court was dealing with strangers, and not with creditors; and, if the estate is to be distributed within a year from adjudication, claims of title to funds or securities in the hands of the trustee must be sooner disposed of. We think the court of bankruptcy has as a necessary incident to its duty to administer the bankrupt's estate the power to summarily dispose of claims to assets in its possession. Collier on Bankruptcy (7th Ed.) 408. Of course, notice must be given to the claimants, and a reasonable time afforded them within which to prove their claims. This petitioner had notice, and, as he made no objection to the time fixed, he is not now in a situation to say that it was too short. What he seeks to do is to be relieved of the time limit, and for that purpose he suggests to the court grounds for exercising its discretion in his favor. When, however, it is considered that he did not ask for relief until nearly 11 months after the period fixed had expired, during which time the referee had passed upon all claims of title and was ready to file an elaborate report, and, further, that the affidavit of his attorney does not state of whom he inquired in June, 1908, nor what information he got, nor when nor from whom he got the subsequent information, what that information was, and whether it could not have been sooner obtained by the exercise of ordinary diligence, we think the court cannot be said to have abused its discretion in denying the motion.
The order is affirmed, with costs.
MARTIN V. BURFORD et al.
(Circuit Court of Appeals, Ninth Circuit. February 7, 1910.)
No. 1,712. 1. APPEAL AND ERROR (8 454*)-JURISDICTION OF APPELLATE COURT_PROCEED
INGS FOR TRANSFER OF CAUSE.
Where a writ of error has been sued out in due time, and duly returned and filed in the Circuit Court of Appeals, together with a transcript of the record and assignment of errors in proper form, the court acquires jurisdiction of the case.
(Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 8 2215;
Dec. Dig. $ 454.*] 2. APPEAL AND ERROR ($ 407*)--SERVICE OF CITATION.
A citation in error should be served personally on the attorneys of record, or upon all of the parties in whose favor judgment was entered, and service by mail is insufficient; but where service was so made, but the court has acquired jurisdiction of the case, a new citation may be issued and properly served.
(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2121 ; Dec. Dig. $ 407.*]
In Error to the District Court of the United States for Division No. 1 of the District of Alaska.
Action by J. W. Martin against George C. Burford, Jules B. Caro, Charles E. Hooker, and J. B. Caro, partners as J. B. Caro & Co., to recover damages alleged to have been sustained by the plaintiff by reason of false representations as to the ownership of property purchased by the plaintiff from the defendants. Judgment for defendants, and plaintiff brings error. On motion to dismiss writ of error. Overruled.
E. M. Barnes, for plaintiff in error.
Winn & Burton and Hellenthal & Hellenthal, for defendants in error.
Before GILBERT and MORROW, Circuit Judges, and HUNT, District Judge.
MORROW, Circuit Judge. The defendants in error have appeared specially and interposed a motion to dismiss the appeal on the ground that the court has no jurisdiction to entertain the appeal, and on the further ground that the court is without jurisdiction of the persons of the defendants in error George C. Burford, Jules B. Caro, and Charles E. Hooker, or the partnership doing business under the firm name and style of J. B. Caro & Co., for the reason that the citation issued there was never served on George C. Burford, or Jules B. Caro, or Charles E. Hooker, or the partnership of J. B. Caro & Co. The plaintiff in error was the plaintiff in the court below, and the judgment appealed from was in favor of all the defendants in error. We assume that the motion was intended to be a motion to dismiss the writ of error, and will treat it as such. The writ of error was sued out in due time after the entry of the judgment, and was returned and docketed in this court, together with an authenticated transcript of the record •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Index as
and the assignment of errors, with the prayer for reversal of the judgment, as provided by law. The court has therefore acquired jurisdiction of the case upon the writ of error, and the motion to dismiss the writ of error must be denied.
Whether the court has obtained jurisdiction of the defendants in error by the serving of the citation is another question. It appears from the evidence of service that the citation was not served upon the attorneys for the defendants in error nor upon George C. Burford, one of the defendants in error; that service was made upon the partnership of J. B. Caro & Co. by depositing a copy of the citation in the post office at Juneau, Alaska, postage prepaid, addressed to "J. B. Caro & Co., Juneau, Alaska”; and that no service of any kind was made upon Charles E. Hooker and J. B. Caro, the individual members of the partnership of J. B. Caro & Co. Service by mail was insuffcient. Tripp v. Santa Rosa Street R. Co., 144 U. S. 126, 129, 12 Sup. Ct. 655, 36 L. Ed. 371. The citation should have been served upon the attorneys of record (Bacon v. Hart, 66 U. S. 38, 17 L. Ed. 52; Bigler v. Waller, 79 U. S. 142, 147, 20 L. Ed. 260), or upon all the parties in whose favor the judgment was entered in the court below (Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 339, 341, 6 Sup. Ct. 74, 29 L. Ed. 432). It has been held that the appellate court cannot take. jurisdiction of a writ of error which describes parties by the name of a firm. Where, however, the record discloses the names of the individuals who comprise the firm, the writ of error can be amended under section 1005, Rev. St. (U. S. Comp. St. 1901, p. 714). Estis v. Trabue, 128 U. S. 225, 228, 9 Sup. Ct. 58, 32 L. Ed. 437. But this rule of amendment does not apply to the citation, which is a notice to the adverse party or parties to appear in the appellate court and show cause why a judgment should not be corrected. In such case all parties in whose favor the judgment is rendered must have notice. The notice may be waived; but if not waived, and the defendants in error are not served with notice, either personally or by their attorney, they have not been brought within the jurisdiction of the court. The proper practice in such case is to issue a new citation. Knickerbocker Life Ins. Co. v. Pendleton, supra; Jacobs v. George, 150 U. S. 415, 14 Sup. Ct. 159, 37 L. Ed. 1127; Altenberg v. Grant, 83 Fed. 980, 28 C, C. A. 244.
Let a new citation issue in this case, to be served upon the attorneys of record representing the defendants in error in the court below, or the attorneys who have appeared specially in this court, or upon all the parties in whose favor the judgment was entered.