Brainard v. Kovacevich

Ninth Circuit

Brainard v. Kovacevich

111 F.2d 794, 1940 U.S. App. LEXIS 3774

Court of Appeals for the Ninth Circuit·Decided May 11, 1940·No. No. 9373·Published

Opinion

MATHEWS, Circuit Judge.

This appeal is from an order of the District Court of the United States for the Southern District of California which, in a proceeding under § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, affirmed certain rulings of a conciliation commissioner which appellant, G. W. Brainard, had petitioned the court to review and reverse.

The order was entered on August 3, 1939. The appeal was taken on September 2, 1939. The record on appeal was filed and the appeal was docketed in this court on November 25, 1939. On January 26, 1940, the District Court, on motion of appellee, John Junior Kovacevich, entered an order dismissing the proceeding. 31 F.Supp. 566. The dismissal rendered moot the order appealed from and all questions arising on the appeal.

Conceding this, appellant seeks nevertheless to prosecute the appeal for the purpose of recovering costs. This he may not do. Union Paper Bag Machine Co. v. Nixon, 105 U.S. 766, 772, 26 L.Ed. 959; Wingert v. First National Bank, 223 U.S. 670, 672, 32 S.Ct. 391, 56 L.Ed. 605; Johnson-Kennedy Radio Corp. v. Chicago Bears’ Football Club, 7 Cir., 97 F.2d 223, 226.

Appeal dismissed.

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MATHEWS, Circuit Judge.

This appeal is from an order of the District Court of the United States for the Southern District of California which, in a proceeding under § 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, affirmed certain rulings of a conciliation commissioner which appellant, G. W. Brainard, had petitioned the court to review and reverse.

The order was entered on August 3, 1939. The appeal was taken on September 2, 1939. The record on appeal was filed and the appeal was docketed in this court on November 25, 1939. On January 26, 1940, the District Court, on motion of appellee, John Junior Kovacevich, entered an order dismissing the proceeding. 31 F.Supp. 566. The dismissal rendered moot the order appealed from and all questions arising on the appeal.

Conceding this, appellant seeks nevertheless to prosecute the appeal for the purpose of recovering costs. This he may not do. Union Paper Bag Machine Co. v. Nixon, 105 U.S. 766, 772, 26 L.Ed. 959; Wingert v. First National Bank, 223 U.S. 670, 672, 32 S.Ct. 391, 56 L.Ed. 605; Johnson-Kennedy Radio Corp. v. Chicago Bears’ Football Club, 7 Cir., 97 F.2d 223, 226.

Appeal dismissed.

Brainard v. Kovacevich, 111 F.2d 794, 1940 U.S. App. LEXIS 3774 (9th Cir. 1940).

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Opinion

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