Clause 3 of General Order in bankruptcy XXXVI applies to
appealable cases, and must be complied with.
This appeal cannot be maintained because it does not come within
either paragraph 1 or paragraph 2 of § 25
b of the
Bankruptcy Act.
Where the decision below proceeds on principles of general law
broad enough to sustain it without reference to provisions of the
Bankruptcy Act, the question involved is not one which would
justify a writ of error from the highest court of a state to this
Court.
Appeal from 150 F. 106 dismissed.
The firm of A. McCoy & Company, a banking copartnership at
Renesselaer, Indiana, was composed of Alfred McCoy and Thomas
McCoy, and on July 11, 1904, the copartnership and its individual
members were respectively adjudicated bankrupts.
Abner T. Bowen presented claims, on notes signed by the firm and
also by its members, against the estate of the copartnership, which
were allowed, and against the individual estate of Alfred McCoy,
which were disallowed, by the referee,
"subject only to such right as said claimant may have in said
estate as a creditor of the estate of the firm of A. McCoy &
Company, bankrupts, after the payment of the individual creditors
of the estate of said Alfred McCoy, bankrupt."
Petition for review was filed and the matter certified to the
District Court for the District of Indiana, by which the decision
and order of the referee were approved and affirmed. Thereupon the
case was carried by appeal to the Circuit Court of Appeals for the
Seventh Circuit, which reversed the judgment of the district court
and remanded the cause
"with instructions . . . to allow the claim as a debt against
the individual estate
Page 207 U. S. 90
of Alfred McCoy, to be paid therefrom ratably with other
creditors of that estate to the extent that such debt is not paid
in the administration of the estate of the firm of McCoy &
Company. 150 F. 106."
An appeal to this Court was allowed by a judge of the circuit
court of appeals, and the case having been docketed here was
submitted on a motion to dismiss or affirm.
Page 207 U. S. 91
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The motion to dismiss was rested on two grounds: (1) that
appellant had failed to comply with clause 3 of General Order in
Bankruptcy XXXVI; (2) that the case was not appealable to this
Court.
Clause 3 of General Order XXXVI reads as follows:
"In every case in which either party is entitled by the act to
take an appeal to the Supreme Court of the United States, the court
from which the appeal lies shall at or before the time of entering
its judgment or decree, make and file a finding of the facts, and
its conclusions of law thereon, stated separately, and the record
transmitted to the Supreme Court of the United States on such an
appeal shall consist only of the pleadings, the judgment or decree,
the finding of facts, and the conclusions of law."
No such finding of facts and conclusions of law was made in this
case, nor was the court requested to make such finding. The appeal
was a general appeal, and the entire record was sent up. The
omission cannot be supplied by reference to the opinion, as is
attempted in argument.
British Queen Mining Company v. Baker
Silver Mining Company, 139 U. S. 222, and
cases cited;
Lehnen v. Dickson, 148 U. S.
71,
148 U. S.
74.
But if the case was not appealable, the appeal must be
dismissed, even though clause 3 had been complied with.
The Bankruptcy Act provides, § 25
b:
"From any final decision of a court of appeals, allowing or
rejecting a claim under this act, an appeal may be had under such
rules and within such time as may be prescribed by the Supreme
Court of the United States in the following cases and no
other:"
"1. Where the amount in controversy exceeds the sum of two
thousand dollars, and the question involved is one which
Page 207 U. S. 92
might have been taken on appeal or writ of error from the
highest court of a state to the Supreme Court of the United States;
or"
"2. Where some justice of the Supreme Court of the United States
shall certify that, in his opinion, the determination of the
question or questions involved in the allowance or rejection of
such claim is essential to a uniform construction of this act
throughout the United States."
As to paragraph 2, there was no such certificate here, and as to
paragraph 1, we are not able to perceive that a writ of error from
the highest court of a state to this Court could be maintained. No
validity of a treaty or statute of, or an authority exercised
under, the United States, was drawn in question; nor the validity
of a statute of, or an authority exercised under, any state, on the
ground of repugnancy to the Constitution, treaties, or laws of the
United States; nor was any title, right, privilege, or immunity
claimed under the Constitution, or any treaty or statute of, or
commission held or authority exercised under, the United States,
and decided against.
The decision below proceeded on well settled principles of
general law, broad enough to sustain it without reference to
provisions of the Bankruptcy Act. and, moreover, even if it could
be held that, by his claim Bowen asserted any right within the
meaning of § 709, Rev.Stat., the decision was in his favor,
and the trustee's bare denial of the claim could not be relied on
under that statute.
New Jersey City & Bergen Railroad
Company v. Morgan, 160 U. S. 288.
Appeal dismissed.
