Bernards v. Johnson,
314 U.S. 19 (1941)

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U.S. Supreme Court

Bernards v. Johnson, 314 U.S. 19 (1941)

Bernards v. Johnson

No. 2

Reargued October 14, 1941

Decided November 10, 1941

314 U.S. 19


1. Where the Circuit Court of Appeals, to await the outcome of a petition to this Court for certiorari, stays the issue of its mandate, but issues the mandate at a subsequent term when the certiorari is denied, it has jurisdiction at that later term to recall the mandate and reconsider the appeal. P. 314 U. S. 29.

2. An order of the court of bankruptcy dismissing an untimely petition for rehearing or review does not extend the time for appeal from the original order. P. 314 U. S. 31.

3. Farmer bankrupts, claiming that foreclosure proceedings in a state court, whereby mortgage creditors had obtained deeds to land pending the bankruptcy proceeding, were void because of provisions of § 75 of the Bankruptcy Act, sought to reopen final orders of the bankruptcy court sustaining the proceedings. The time for appeal having expired, that court dismissed the petition because of its untimeliness, without reexamining the adjudicated merits.


(1) That the merits of the claim were not open upon the bankrupts' appeal to the Circuit Court of Appeals. P. 314 U. S. 32.

(2) Although the bankruptcy court, acting on prayers for affirmative relief in the answers of the mortgagee respondents and the trustee, made certain findings based upon admissions of the bankrupts, as to the validity of the mortgage titles, and quieted them, and made other findings, and gave its approvals and instructions to the trustees touching the administration of the estate, this was not a review of the bankrupts' claim against the mortgagees. P. 314 U. S. 31.

(3) Other findings, to the effect that the bankrupts had made no attempt to comply with § 75 (s) of the Act and that there had been no hope or possibility of their financial rehabilitation were not necessary to the decision of questions presented, and did not render their disposition erroneous. P. 314 U. S. 31.

4. The remedy for correcting erroneous orders and decrees of the bankruptcy court sustaining foreclosure proceedings in a state court and titles emanating therefrom, over the bankrupt's claim that, because of provisions of § 75 of the Bankruptcy Act, the proceedings

Page 314 U. S. 20

and title are void, is by timely application for review, or by timely appeal. P. 314 U. S. 32.

103 F.2d 567 affirmed.

Certiorari, 310 U.S. 616, to review a decree of the Circuit Court of Appeals affirming orders of the District Court in bankruptcy. The orders refused to reopen certain earlier orders sustaining foreclosures in a state court, upon the ground that they were final adjudications and that the time allowed for reviewing them had expired. They also ratified orders of a conciliation commissioner, and in effect directed that the cause proceed as an ordinary bankruptcy, and not under § 75(5) of the Bankruptcy Act. Petition for certiorari was denied, 308 U.S. 595. A second petition for certiorari was granted, 310 U.S. 616, upon which, after argument, there was an affirmance by an equal division of opinion among the Justices, 313 U.S. 537. A rehearing was ordered, 313 U.S. 597.

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