Raich v. Olson

Eighth Circuit

Raich v. Olson

25 F.2d 865, 1928 U.S. App. LEXIS 3093

CourtCourt of Appeals for the Eighth Circuit

DecidedApril 13, 1928

Docket7834

StatusPublished

Cited by8 cases

This text of 25 F.2d 865 (Raich v. Olson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raich v. Olson, 25 F.2d 865, 1928 U.S. App. LEXIS 3093 (8th Cir. 1928).

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Opinion

WALTER H. SANBORN, Circuit Judge.

Subdivision b of section 24 of the Bankruptcy Act, as amended by the Act of May 27, 1926, 44 Stat. 664, U. S. C. tit. 11, § 47, reads in this way:

“(b) The several Circuit Courts of Appeal and. the Court of Appeals of the District of Columbia shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law (and in matter of law and fact the matters specified in section 25 [11 USCA § 48]) the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal, except in the eases mentioned in said section 25 to he allowed in the discretion of the appellate court.” 11 USCA § 47(b).

Mr. Sam Raich was adjudged a bankrupt on April 23, 1924. The court below appointed Mr. W. A. Olson receiver, and as such ho took possession of and administered the bankrupt’s property until he died in February, 1925; then the court appointed Mr. P. E. Byrne his successor, who obtained and paid over to the referee $7,740.96, which he obtained from a bank in which Mr. Olson, as receiver, had deposited it. A composition with his creditors had been made by Mr. Raich and confirmed by the referee before the death of the first receiver. ' Mr. Raich claimed that the $7,740.96 which came to the referee was his property under and pursuant to the composition, free from all expenses of conducting the bankruptcy proceedings, but after hearing evidence and arguments the referee reported and ordered many claims for expenses of the proceedings in bankruptcy paid out of this $7,740.96. The referee’s report, decision, and order upon this subject were reviewed by the court below and affirmed on January 31, 1927. Thereupon Mr. Raich petitioned the court below to allow him an appeal from that order and it granted his petition.

The appellant is met in this court by a motion to dismiss his appeal on the ground that he never applied to this court for and it never allowed his appeal as required by U. S. C. tit. 11, § 47, quoted above. The orders and decisions of which the appellant complains were made in a proceeding in bankruptcy. This court has no jurisdiction to review or adjudge them on appeal unless such appeal has been allowed in the discretion of this court as required by the act of Congress quoted. The questions presented by this motion have been exhaustively considered and decided by this court in Broders v. Lage, 25 F.(2d) 288, filed March 1, 1928; Stanley’s Incorporated Store v. Earl, 25 F.(2d) 458, filed March 30, 1928.

The motion to dismiss must be and it is granted.

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WALTER H. SANBORN, Circuit Judge.

Subdivision b of section 24 of the Bankruptcy Act, as amended by the Act of May 27, 1926, 44 Stat. 664, U. S. C. tit. 11, § 47, reads in this way:

“(b) The several Circuit Courts of Appeal and. the Court of Appeals of the District of Columbia shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law (and in matter of law and fact the matters specified in section 25 [11 USCA § 48]) the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised by appeal and in the form and manner of an appeal, except in the eases mentioned in said section 25 to he allowed in the discretion of the appellate court.” 11 USCA § 47(b).

Mr. Sam Raich was adjudged a bankrupt on April 23, 1924. The court below appointed Mr. W. A. Olson receiver, and as such ho took possession of and administered the bankrupt’s property until he died in February, 1925; then the court appointed Mr. P. E. Byrne his successor, who obtained and paid over to the referee $7,740.96, which he obtained from a bank in which Mr. Olson, as receiver, had deposited it. A composition with his creditors had been made by Mr. Raich and confirmed by the referee before the death of the first receiver. ' Mr. Raich claimed that the $7,740.96 which came to the referee was his property under and pursuant to the composition, free from all expenses of conducting the bankruptcy proceedings, but after hearing evidence and arguments the referee reported and ordered many claims for expenses of the proceedings in bankruptcy paid out of this $7,740.96. The referee’s report, decision, and order upon this subject were reviewed by the court below and affirmed on January 31, 1927. Thereupon Mr. Raich petitioned the court below to allow him an appeal from that order and it granted his petition.

The appellant is met in this court by a motion to dismiss his appeal on the ground that he never applied to this court for and it never allowed his appeal as required by U. S. C. tit. 11, § 47, quoted above. The orders and decisions of which the appellant complains were made in a proceeding in bankruptcy. This court has no jurisdiction to review or adjudge them on appeal unless such appeal has been allowed in the discretion of this court as required by the act of Congress quoted. The questions presented by this motion have been exhaustively considered and decided by this court in Broders v. Lage, 25 F.(2d) 288, filed March 1, 1928; Stanley’s Incorporated Store v. Earl, 25 F.(2d) 458, filed March 30, 1928.

The motion to dismiss must be and it is granted.

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Bluebook (online)

25 F.2d 865, 1928 U.S. App. LEXIS 3093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raich-v-olson-ca8-1928.

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