Opinion
No. 6.
February 1, 1937.
Appeal from the District Court of the United States for the Northern District of New York.
In the matter of Mark Roe, bankrupt. From an order denying a motion to revoke a discharge in bankruptcy, Claim Adjuster, Incorporated, a creditor, appeals.
Appeal dismissed.
F.M. Joslyn, of Buffalo, N.Y. (Curtiss D. Matterson, of Syracuse, N.Y., of counsel), for appellant.
Joseph E. North, of Binghamton, N.Y., for respondent.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The appellee was adjudged a bankrupt February 26, 1930. A petition for extension of time to apply for a discharge was filed February 6, 1934, when an order was entered granting the right to file a petition for discharge nunc pro tunc as of May 2, 1930. An order of discharge was entered March 6, 1934, from which no appeal was taken. Appellant moved, April 27, 1934, to vacate the discharge; the motion was denied, and this appeal followed.
Section 25 of the Bankruptcy Act (30 Stat. 553, as amended 11 U.S.C.A. § 48) grants an appeal as of right, within 30 days, from an order granting a discharge. Appellant did not oppose the granting of such discharge but claims it had no notice of those proceedings. Be that as it may, it is clear that the order denying the motion to revoke the discharge is appealable only by a petition to revise. In re Jacobs, 241 F. 620 (C.C.A.6); Thompson et al. v. Mauzy, 174 F. 611 (C.C.A.4). See In re Louisville Nat. Banking Co., 158 F. 403 (C.C.A.6). Thompson et al. v. Mauzy, supra, held that an order refusing to set aside a discharge was not appealable under section 24a (11 U.S.C.A. § 47(a) as a controversy in bankruptcy; whether it was appealable under section 25(a)(2), 11 U.S.C.A. § 48(a)(2), as the equivalent of an order granting a discharge was not decided. In Re Jacobs, supra, an order revoking a discharge was held not appealable under section 25(a)(2). A parallel situation is presented by section 25(a)(1), which makes a judgment granting or refusing an adjudication appealable as of right. But an order refusing to vacate an order of adjudication is appealable only with leave. Chicago Bank of Commerce v. Carter, 61 F.2d 986 (C.C.A.8). Administrative orders of this character constitute proceedings in bankruptcy from which an application for leave to appeal is necessary (section 24(b). See Taylor v. Voss, 271 U.S. 176, 181, 46 S.Ct. 461, 70 L.Ed. 889.
It is true that section 14a of the Bankruptcy Act, as amended (11 U.S.C.A. § 32(a), provides that applications for discharge must be filed within twelve months, with a six-month period of grace permissible in the court's discretion [see In re Sullivan, 62 F.2d 245 (C.C.A.2), certiorari denied Sullivan v. Kohn, 289 U.S. 725, 53 S.Ct. 523, 77 L.Ed. 1475] and that here the discharge was invalidly granted more than four years after adjudication. Still, we possess no discretion to entertain an appeal not taken in accordance with the statute. Compliance therewith is jurisdictional. Wingert et al. v. Smead et al., 70 F.2d 351 (C.C.A.4), certiorari denied 293 U.S. 567, 55 S.Ct. 77, 79 L.Ed. 666. Leave to appeal was not granted, and the appeal must accordingly be dismissed.
Appeal dismissed.