Congress having provided by § 25
b of the Bankruptcy Act
that appeals may be had under such rules and within such time as
may be prescribed by this Court, the thirty-day limitations in
General Order in Bankruptcy XXXVI has the same effect as if written
in the statute and the allowance of an appeal taken thereafter on
certificate by a Justice of this Court from the circuit court of
appeals cannot operate as an adjudication that it is taken in
time.
The time within which an appeal may be taken under §
25
b of the Bankruptcy Act and General Order in Bankruptcy
XXXVI runs from the entry of the original judgment or decree and
when expired is not revived by a petition for rehearing. Appeals do
not lie from orders denying petitions for rehearing which are
addressed to the discretion of the court to afford it an
opportunity to correct its own errors.
The time for appeal cannot, after it has expired, be extended by
an application for rehearing or arrested by an order of the court,
even though the application be made during the same term at which
judgment was entered.
Appeal from 135 F. 77 dismissed.
The facts are stated in the opinion.
Page 203 U. S. 142
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is an appeal from a final order of the Circuit Court of
Page 203 U. S. 143
Appeals for the Second Circuit affirming an order of the
District Court of the United States for the Southern District of
New York, filed June 7, 1904, affirming an order of a referee in
bankruptcy, "In the matter of Phillip Semmer Glass Company,
Limited, Bankrupt," dated May 7, 1904, allowing the claim of the
First National Bank of Jersey City against the bankrupt's
estate.
The final order of the circuit court of appeals was entered
January 23, 1905. The trustee petitioned that court, April 25, to
recall its mandate and vacate the order therefor, and the
application was denied. On May 8, a petition for rehearing was
filed, which was denied May 17, and an order to that effect entered
May 24. A petition, dated the same day, was thereupon presented to
a Justice of this Court praying an appeal
"from the whole of the said order of affirmance of the Circuit
Court of Appeals for the Second Circuit, dated the twenty-third day
of January, 1905, and from the whole of the said order of the
Circuit Court of Appeals for the Second Circuit, dated the
twenty-fifth day of April, 1905, denying the motion of your
petitioner to recall the mandate of said court and cancel the order
for same, and from the whole of the said order of the Circuit Court
of Appeals for the Second Circuit, dated the twenty-fourth day of
May, 1905, denying the petition of the said trustee for a
rehearing,"
and for the reversal of "said orders and decrees, etc., and
every part thereof."
Appeal was allowed and certificate granted under § 25
b,
par. 2, of the Bankruptcy Act, May 27, 1905. Thereafter and on June
14, 1905, findings of fact and conclusions of law were filed by the
circuit court of appeals,
"
nunc pro tunc, as though the same were made and filed
at the time of entry of the judgment of this Court on the
twenty-third day of January, 1905."
The following provisions of the Bankruptcy Act are
applicable:
"SEC. 25
b. From any final decision of a court of
appeals
Page 203 U. S. 144
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:"
"
* * * *"
"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."
Paragraphs 2 and 3 of General Orders in Bankruptcy XXXVI,
read:
"2. Appeals under the act to the Supreme Court of the United
States from a circuit court of appeals, or from the supreme court
of a territory, or from the Supreme Court of the District of
Columbia, or from any court of bankruptcy whatever, shall be taken
within thirty days after the judgment or decree, and shall be
allowed by a judge of the court appealed from, or by a justice of
the Supreme Court of the United States."
"3. 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."
The law provides that appeals shall be taken "within such time
as may be prescribed by the Supreme Court of the United States,"
and by General Order XXXVI, this Court prescribed the time and
limited it to thirty days, in harmony with the policy of the
Bankruptcy Act, requiring prompt action and the avoidance of
delay.
The limitation has the same effect as if written in the
statute,
Page 203 U. S. 145
and the allowance of an appeal on certificate cannot operate as
an adjudication that it is taken in time.
The present appeal was allowed four months "after the judgment
or decree" appealed from and three months after the time to appeal
had expired.
But it is said that the limitation should be referred to the
date of the order denying the petition for rehearing, and the
trustee prayed an appeal from that order as well as from the
judgment of January 23.
No appeal lies from orders denying petitions for rehearing,
which are addressed to the discretion of the court and designed to
afford it an opportunity to correct its own errors.
Brockett v.
Brockett, 2 How. 238;
Wylie v.
Coxe, 14 How. 1. Appellant might have made his
application for rehearing and had it determined within the thirty
days, and still have had time to take his appeal. But he let the
thirty days expire, as it did February 22, 1905, and did not file
his petition until May 8, 1905. The right of appeal had then been
lost, and appellant could not reinvest himself with that right by
filing a petition for rehearing.
The cases cited for appellant, in which it was held that an
application for a rehearing, made before the time for appeal had
expired, suspended the running of the period for taking an appeal,
are not applicable when that period had already expired.
"When the time for taking an appeal has expired, it cannot be
arrested or called back by a simple order of court. If it could be,
the law which limits the time within which an appeal can be taken
would be a dead letter."
Credit Company, Limited v. Arkansas Central Railway
Company, 128 U. S. 258,
128 U. S.
261.
In the circumstances, the suggestion that there is but one term
of the Circuit Court of Appeals for the Second Circuit, and that,
by the rules of practice of that court, petitions for rehearing may
be presented at any time during the term, and therefore that this
petition operated to enlarge the limitation of the Bankruptcy Act,
is without merit.
Page 203 U. S. 146
The petition was denied. Whether it could have been granted in
view of the terms and spirit of the Bankruptcy Act, or the effect,
if it had been, we are not called upon to discuss.
Appeal dismissed.