Hoover v. Hockenberry

100 F.2d 87, 1938 U.S. App. LEXIS 2582

• Court: Court of Appeals for the Third Circuit
• Decided: July 12, 1938
• Docket: No. 6665
• Status: Published

Opinions

DICKINSON, District Judge.

A preliminary and what seems to be the only question now raised is that of the propriety of an order of adjudication in bankruptcy. The petition in bankruptcy was challenged for insufficiency in form and suhstance. The petition was amended. The alleged bankrupt demanded a jury trial. The jury found against the bankrupt and after awaiting an appeal within thirty days, an order of adjudication was entered. The petition in bankruptcy was filed October 14th, 1935. The verdict of the jury was rendered January 28th, 1937; a new trial refused March 27th, 1937, and on April 27th, 1937, an adjudication was entered. The Appellant made a motion to vacate the order of adjudication which, on November 16th, 1937, was denied, and on December 10th, 1937 an appeal was allowed. The Appellant had thirty days in which to appeal from the order of adjudication. This is the order or decree from which he seeks to appeal. The time allowed by law for such an appeal expired May 27th, 1937. He could not extend this time by a motion to vacate. Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 133, 137, 57 S.Ct. 382, 383, 385, 81 L.Ed. 557.

This is conclusive, for on page 137, 57 S.Ct. on page 385, the Court said: “The granting of a rehearing is within the court’s sound discretion, and a refusal to entertain a motion therefor, or the refusal of the motion, if entertained, is not the subject of appeal. A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal.”

The appeal is dismissed.