ALBIN
v.
COWING PRESSURE RELIEVING JOINT CO. ET AL.
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In an involuntary bankruptcy proceeding, the Supreme Court held that a bankruptcy court's order vacating a restraining order against the debtor's prosecution of a state court suit constituted a "proceeding in bankruptcy" subject to appellate review by the Circuit Court of Appeals under Section 24(a) of the Chandler Act, reversing the appellate court's dismissal for lack of jurisdiction.
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Mr. Justice Douglas delivered the opinion of the Court.
Petitioner filed an involuntary petition in bankruptcy against respondent, who answered denying the allegations of the petition. Prior to adjudication, the bankruptcy court entered an ex parte order, on petition of the same creditor, restraining the prosecution by respondent or its agents of a suit in the Illinois state courts on a claim against one Fisher, in which suit, it was alleged, Fisher had filed counterclaims which would exceed the amount of the respondent’s claim. Thereafter, on petition of respondent and after notice to all parties and a hearing, the bankruptcy court vacated the restraining order. This likewise was, so far as appears, prior to an adjudication. Petitioner appealed. The Circuit Court of Appeals dismissed the appeal “for lack of jurisdiction.” The case is here on certiorari.
Sec. 24 (a) of the Chandler Act (52 Stat. 854, 11 U.
S. C. § 47) gives the Circuit Courts of Appeals appellate jurisdiction from courts of bankruptcy “in proceedings in bankruptcy, either interlocutory or final.” An order of the bankruptcy court vacating a restraining order against prosecution of a suit in a state court is, like a stay order itself, a proceeding in bankruptcy. See Harrison Securities Co. v. Spinks Realty Co., 92 F. 2d 904; Taylor v. Voss, 271 U. S. 176, 181. The amendments to § 24 (a) made by the Chandler Act practically abolished the distinction between appeals as of right and by leave.
S. Rep. No. 1916, 75th Cong., 3d Sess., p.
4. And see Dickinson Industrial Site v. Cowan, 309 U. S. 382, 385-388. Whatever may still be the possible limitations on the review-ability of interlocutory orders (see In re Hotel Governor Clinton, 107 F. 2d 398; Federal Land Bank v. Hansen, 113 F. 2d 82, 84-85), no reason appears why this one cannot or should not be reviewed. Nor does it appear from the record which is before us that the issue is moot. We intimate no opinion on the merits. The judgment is reversed and the cause remanded to the Circuit Court of Appeals for proceedings in conformity with this opinion.
Reversed.
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Citator
Cited By (12 total)
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In re Mfrs. Trading Corp. Kiersted v. Hadden (two cases), 194 F.2d 948 (6th Cir. 1952)…ch interlocutory orders are appealable as a matter of right, with a few minor exceptions, referred to hereinafter, without the necessity of an allowance of an appeal by either the District Court or by the Court of Appeals. Albin v. Cowing Joint Co., 317 U.S. 211, 63 S.Ct. 170, 87 L.Ed. 212; Matter of Winton Shirt Corp., supra, 3 Cir., 104 F. 2d 777, 779-780; Robertson v. Berger, 2 Cir., 102 F. 2d 530; In re Bush Terminal Co., supra; In re Braker, 6 Cir., 127 F. 2d 652. Although Section 24(a) of the Bankrup…
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DE Laney v. City Inv. Co., 224 F.2d 808 (10th Cir. 1955)…ction 24, sub. a of the Bankruptcy Act, as amended, 11 U.S.C.A. § 47, sub. a, makes appealable as a matter of right virtually all interlocutory orders in proceedings in bankruptcy involving $500 or more. Albin v. Cowing Pressure Relieving Joint Co., 317 U.S. 211, 63 S.Ct. 170, 87 L.Ed. 212; Delatour v. Meredith, 2 Cir., 144 F. 2d 594; In re American Bantam Car Co., 3 Cir., 193 F. 2d 616, 617. But in order to be appealable under the statute, an interlocutory order must determine something. It must substantia…
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In re Chicago Rapid Transit Co. v. Fallon, 200 F.2d 341 (7th Cir. 1952)…le the amendment of § 24, sub. a of the Act “practically abolished the distinction between appeals as of right and by leave,” it still left some limitations on the reviewability of inter.locutory orders. Albin v. Cowing Pressure Relieving Joint Co., 317 U.S. 211, 63 S.Ct. 170, 171, 87 L.Ed. 212. It did not render appealable the various ones which determine nothing with respect to the administration of the estate. Before an interlocutory order is appealable it must substantially determine some issue or decid…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. Voss, 271 U.S. 176 (U.S. 1926)
- Dickinson Indus. Site, Inc. v. Cowan, 309 U.S. 382 (U.S. 1940)
- In re Hotel Governor Clinton, 107 F.2d 398 (2d Cir. 1939)
- Fed. Land Bank of Springfield v. Hansen, 113 F.2d 82 (2d Cir. 1940)
- Harrison Sec. Co. v. Spinks Realty Co., 92 F.2d 904 (9th Cir. 1937)