In re the claim of Kirkpatrick

Arizona Supreme Court

In re the claim of Kirkpatrick

85 P. 656, 10 Ariz. 39, 1906 Ariz. LEXIS 92

CourtArizona Supreme Court

DecidedMarch 30, 1906

DocketCivil No. 928

StatusPublished

This text of 85 P. 656 (In re the claim of Kirkpatrick) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the claim of Kirkpatrick, 85 P. 656, 10 Ariz. 39, 1906 Ariz. LEXIS 92 (Ark. 1906).

Pincite

Opinion

CAMPBELL, J.

This is an appeal from an order made by the district court sitting in bankruptcy. Appellee moves to dismiss on the ground that it was not properly perfected. The order complained of was made on July 28th. On July 31st, appellant asked a rehearing. It was denied, and thereupon, following the territorial practice he gave notice of appeal in [41]*41open court. The court fixed the amount of the bond on appeal at five hundred dollars, and directed that the same be approved by the clerk. The bond was filed, and approved by the clerk, August 28th. Appellee contends that the order appealed from comes within those enumerated in section 25a of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stats. 553, [U. S. Comp. Stats. 1901, p. 3432]), and that the appeal must be perfected by the filing of a bond within ten days; that, even if the order is such as to be appealable under section 24, the appeal should be dismissed for the reason that the bond has not been approved by the judge.

It is not necessary to determine under which section of the act the appeal should have been brought. Pursuant to the authority conferred upon it, the supreme court of the United States has, by order, provided: “Appeals from a court of bankruptcy to a circuit court of appeals or to the supreme court of a territory shall be allowed by the judge of the court appealed from, or the court appealed to, and shall be regulated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States.” General Order No. 36 (89 Fed. xiv, 32 C. C. A. xxxvi). The appeal must be allowed by the judge of the court appealed from or of the court appealed to, and the bond on appeal must be approved by the judge, and authority to approve it may not be delegated to the clerk. O’Reilly v. Edrington, 96 U. S. 724, 24 L. Ed. 659; National Bank v. Omaha, 96 U. S. 737, 24 L. Ed. 881; Brown v. McConnell, 124 U. S. 489, 8 Sup. Ct. 559, 31 L. Ed. 495. Conceding that, by fixing the amount of the bond on appeal in this case, the judge of the trial court thereby allowed the appeal, it has not been perfected, as the bond was not approved by him. In proper cases appellants, it seems, should be afforded an opportunity by this court to furnish the requisite security; but in this case the order complained of has been reversed upon an appeal brought by certain petitioning creditors (Appeal of Soto Bros. & Renaud, Copartners, post, p. 42, 85 Pac. 653), and nothing would be accomplished by permitting appellant to furnish the proper security.

The appeal is dismissed.

KENT, C. J., SLOAN, J., and NAYE, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

CAMPBELL, J.

This is an appeal from an order made by the district court sitting in bankruptcy. Appellee moves to dismiss on the ground that it was not properly perfected. The order complained of was made on July 28th. On July 31st, appellant asked a rehearing. It was denied, and thereupon, following the territorial practice he gave notice of appeal in [41]*41open court. The court fixed the amount of the bond on appeal at five hundred dollars, and directed that the same be approved by the clerk. The bond was filed, and approved by the clerk, August 28th. Appellee contends that the order appealed from comes within those enumerated in section 25a of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stats. 553, [U. S. Comp. Stats. 1901, p. 3432]), and that the appeal must be perfected by the filing of a bond within ten days; that, even if the order is such as to be appealable under section 24, the appeal should be dismissed for the reason that the bond has not been approved by the judge.

It is not necessary to determine under which section of the act the appeal should have been brought. Pursuant to the authority conferred upon it, the supreme court of the United States has, by order, provided: “Appeals from a court of bankruptcy to a circuit court of appeals or to the supreme court of a territory shall be allowed by the judge of the court appealed from, or the court appealed to, and shall be regulated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States.” General Order No. 36 (89 Fed. xiv, 32 C. C. A. xxxvi). The appeal must be allowed by the judge of the court appealed from or of the court appealed to, and the bond on appeal must be approved by the judge, and authority to approve it may not be delegated to the clerk. O’Reilly v. Edrington, 96 U. S. 724, 24 L. Ed. 659; National Bank v. Omaha, 96 U. S. 737, 24 L. Ed. 881; Brown v. McConnell, 124 U. S. 489, 8 Sup. Ct. 559, 31 L. Ed. 495. Conceding that, by fixing the amount of the bond on appeal in this case, the judge of the trial court thereby allowed the appeal, it has not been perfected, as the bond was not approved by him. In proper cases appellants, it seems, should be afforded an opportunity by this court to furnish the requisite security; but in this case the order complained of has been reversed upon an appeal brought by certain petitioning creditors (Appeal of Soto Bros. & Renaud, Copartners, post, p. 42, 85 Pac. 653), and nothing would be accomplished by permitting appellant to furnish the proper security.

The appeal is dismissed.

KENT, C. J., SLOAN, J., and NAYE, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

85 P. 656, 10 Ariz. 39, 1906 Ariz. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-claim-of-kirkpatrick-ariz-1906.

Opinion

Related

Cite This Page — Counsel Stack