Section 25
b of the Bankruptcy Law only gives a right of
appeal to this Court from a decision of the circuit court of
appeals affirming or reversing the order of the district court,
allowing or rejecting a claim when the decision is final, whether
there is a certificate under § 25
b, 2 or not. A decision
simply allowing or disallowing a claim for voting purposes without
prejudice to its subsequent presentation is not final, but
provisional.
No appeal lies to this Court from a decision of the circuit
court of appeals in the exercise of supervisory jurisdiction in
bankruptcy matters. Nor can a petition for revision to that court
be turned into an appeal.
A petition for revision opens only questions of law, while an
appeal opens both fact and law.
Appeal from 161 F. 540 dismissed.
The facts, which involve the construction of certain provisions
of the Bankruptcy Law and the jurisdiction of this Court of appeals
from the circuit court of appeals, are stated in the opinion.
Page 218 U. S. 300
MR. JUSTICE HOLMES delivered the opinion of the Court.
This case arose on a controversy as to the right of the
appellee, Sternbergh, to vote on the selection of a trustee in
bankruptcy. At the first meeting of the creditors, Sternbergh
offered for allowance a proof of claim for $14,438.86, which was
objected to on the ground that Sternbergh was indebted to the
bankrupt company for unpaid stock. Sternbergh announced that he
intended to use this claim for voting purposes. After a hearing,
the referee refused to allow the claim for use in the election, and
certified the facts, as Sternbergh's vote, if allowed, would have
elected a different trustee. The district judge stated the question
to be whether the referee was right in rejecting the claimant's
offer to vote, and that it did not involve the extent, but only the
fact, of Sternbergh's liability, and he affirmed the action of the
referee. Thereupon Sternbergh filed a petition to the circuit court
of appeals, seeking a revision of the decree in matter of law under
§ 24
b of the Bankruptcy Law. That court, remarking that
the facts were not in dispute, proceeded to discuss their
significance and effect, and reversed the decree, but allowed the
selection of trustee to stand, as no allegation was made against
him. The bankrupt, through the trustee, appealed to this Court,
obtaining a certificate from a justice of this Court under §
25
b, 2.
The first question to be answered is whether this is a case in
which a party is entitled to take an appeal to this Court under §
25. And clearly it is not. The right of appeal from a decision of a
circuit court of appeals allowing or rejecting a claim is given by
25
b only where the decision is final, whether there is a
certificate under § 25
b, 2, or not. The circuit court of
appeals may render a final decision when an appeal is taken to it
under 25
a from a judgment allowing or rejecting a claim of
$500 or over. But this case did not and could not have
Page 218 U. S. 301
come to in that way, for there was no judgment allowing or
rejecting the claim. The referee's order was, "The within claim is
disallowed for the present, especially as to voting, without
prejudice to the claimant's right to present the claim hereafter."
That is the order that was reviewed by the district court, and that
was affirmed by it. Therefore Sternbergh's counsel, rightly
apprehending that they could not appeal to the circuit court of
appeals, brought their petition for revision under § 24
b,
alleging that the district judge erred in matter of law in
confirming the order of the referee, refusing to allow the claim of
Sternbergh to be filed for voting upon the election of trustee.
This is all that was brought before the circuit court of appeals,
and all that it had authority to decide. Its decision, although
directing the district court to allow the petitioner to prove his
claim, was not a final decision upon that point, and did not come
to it in such a way that it could be. It simply reversed the
provisional order of the referee, and made a provisional, though
seemingly useless, order the other way.
No appeal to this Court lies from a decision in the exercise of
supervisory jurisdiction.
Holden v. Stratton, 191 U.
S. 115. But it is said that the circuit court of appeals
treated this case as an appeal; that it did not follow the findings
of the referee and the court below, as it was bound to do on a
revisory proceeding; that it filed a statement of the facts found
and of its conclusion of law, as required in an appeal by general
orders 36, 3, and that a Justice of this Court allowed an appeal
from its decision, which, as we have said, does not lie from an
order or decree under § 24
b. It is argued that an appeal
to the circuit court of appeals may be treated as a petition for
revision,
Holden v. Stratton, 191 U.
S. 115,
191 U. S. 119, and
that, conversely, a petition for revision may be turned into an
appeal, or at least treated as one for the purpose of an appeal to
this Court, if only to establish that the circuit
Page 218 U. S. 302
court of appeals exceeded its jurisdiction. There are two
answers to this contention. In the first place, the converse
proposition does not hold. An appeal opens both fact and law, and
therefore might be regarded as intended to raise questions of law
in any way that might be deemed proper. But a petition for revision
opens only questions of law, and when the foundation of its
jurisdiction is thus narrowed, the action of the court cannot
enlarge it so as to deal with the facts. In the next place, in this
case, the circuit court of appeals made no such attempt. It treated
the facts as undisputed, and differed from the court below only in
its understanding of their significance and legal import. It filed
no finding of facts at or before the time of entering its decree,
as required by the general orders, but did so only two months after
the decree had been entered and a month after an appeal had been
taken and allowed by a Justice of this Court upon a petition of the
appellant.
We have considered the suggestion that, if the appeal should be
dismissed, a certiorari should be granted, but we are of opinion
that no ground is shown for the issue of the writ.
Appeal dismissed.