
    BUFF v. CARRIER.
    (Circuit Court of Appeals, Third Circuit.
    April 19, 1893.)
    2, Jurisdiction o» Onset: nr Court o>- Appeals Okbkh Alt,owing Claim in Banjouj L'TOI.
    The circuit court of appeals lias jurisdiction of an appeal by an assignee in bankruptcy from an order of Hie district court allowing the claim of a creditor, wider Rev. Ft. § -1980, giving an npyopl in such eases to the eirenit court, and Act. (Jong. ¿larch 3. 189L. transferring the appellate jurisdiction, of the circuit, court to Uie circuit court of appeals.
    
      % Sam® — Awealabln Ojrdku.
    ¡Such an order is a “íinai decisión.,"’ within section 8 of the said act of March 3, 1891.
    3. Paovixs Debt in Bat-ikkuptcy — Ik wot on A tta on bent ~Ik.íi jmott on.
    dev. ¡.U. § 5075, requiring an at ¡aching creditor to account for the property seized, and to surrender any lien ihor, acquired by hint before: he can, prove Ms eebr in ban'trupicy, will not bar such creditor's rigid to participate in the fund, w here Hie attachment was levied within four mouth» next pro: ''ding die. uuMmeiieemont of the bankruptcy proceeding,'and was tli''re!'«>”e. by viritie of Rev. 81. § 5041, die,solved by operation of law upon toe execution of the assignment in buntcruptcy; and wnero Hie altaehmen:, i« enjoined upon the petition of a creditor, and the proroHlingN itbr.niloncd oy ¡lie mim-bing pLimiiT. 51 Fed. Hop. 090. affirmed.
    Appeal irons the District. Court of (he Untied Sitttea Tor the Western f Met rid, of ¿"eniisylvauia.
    jit liankniptey. In the msdier of John. Carrier and A: R LL.iíib,. bimla-uore. An oi-ilor war. made allowing the claim of !<’. G. Carrier yy creditor, (51 Led. Hep. 990,) and the ivr.ignee, Levi JTkd J)tiff, a y .• >ra la
    Ail ire ted.
    Levi Lli'd Duff, in pro. per.
    Jaron, McKee ft Sanderson and Tixotnae II. Alcorn, for appellee,
    A(>íLk* JULEJOA and DALLAS, Circuii .Judged, and IAJTi<ICJis 1 'hruiet Judge.
   AUllEiXO, Circuit Judge.

This A an appeal Toy an a8ñign«e in •honkrupiev íroiij an ordei- of the district, court, .stride í-jeptciiifeer 16. ALL .‘'.slowing the claim of an allege;! e redi ter, and direct big tin iVivmoiiT <»” n dividend ilioreim. The queer,ion whether this «raid Tsar, jtniw.Ticlstra of duch an apt seal liar, been raided, and ir, <o he coKtiidered furt. Beoi.io.u 49Í-50, Rev. Kt IT. S. lit “-Bankruptcy,” after providing ibr appeals in cases in equity and writs of error in ernes at law, contain» the following provision: •

"Awl any supposed creditor whoso claim is wholly or In pari rejected, or an recignee who is dissatisfied with the allowance of a claim, may appeal from iho decision of the diniriet court to the circuit court for the samo district.”

Section 4 of the act to establish circuit courts of appeals, approved March 3,1891, is as follows:

“That, no appeal, whether by writ of error or otherwise, shall hereafter be taken or allowed from any district court to the existing circuit courts, and no appellate jurisdiction shall hereafter be exercised or allowed by said existing circuit courts; but all appeals, by writ of error or otherwise, from said district courts, shall only be subject to review in the supreme court of the
United States, or in the circuit court of appeals hereby established, as is hereinafter provided, and the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the supreme court of the United States, or in the circuit courts of ajipeals hereby established, according to the provisions of this act regulating the same.”

Now the fifth section of this act, which provides for appeals from the district courts to the supreme court, and for writs of error therefrom, does not embrace such a case as this. It follows, then, that the order here complained of is renewable by this court, unless, under the bankrupt law, an appeal by an assignee from the allowance of a claim appertains to the general supervisory jurisdiction of the circuit court over cases and questions arising in the district court sitting in bankruptcy, conferred by section 4986, Rev. St. This is the position here taken by the creditor, the appellee. But the express provision contained in section 4980, authorizing an appeal by the assignee from the allowance of a claim, excludes the inference that such a case comes within the general supervisory jurisdiction given by section 4986. It is, too, worthy of note that the prescribed remedy is contained in a section relating to appeals, in the ordinary sense, in cases- in equity, and to writs of error, in suits at law. Moreover, the mode of taking and perfecting such appeal is specially regulated by section 4981, while section 4982 provides that the appeal shall be entered at the term of the circuit court which shall be held within the district next after the expiration of 10 days from the time of claiming the appeal. But the general supervisory jurisdiction given by section 4986 may be exercised in term time or in vacation, summarily, by the circuit court, or by the circuit justice or the circuit judge. In the early case of Ooit v. Robinson, 19 Wall. 274, the supreme court had occasion to contrast the provisions of the bankrupt law touching the appellate jurisdiction of the circuit court with the clause conferring the general supervisory jurisdiction, and in its opinion the court distinctly declared that an appeal by the assignee from the decision of the district court, allowing the claim of a supposed creditor, belonged to one of “four classes of cases under the bankrupt law,” in widch “appellate jurisdiction may unquestionably be exercised by the circuit courts.” We find nothing to the contrary in any later utterance of that court.

To the argument based upon the supposed incongruity between the method of review contemplated by the courts of appeals act and the course of procedure prescribed by section 4984, Rev. St., it is enough, at present, to say that that section relates to an appeal by a creditor, and does not in terms apply to such a case as the one now before us. Upon a careful consideration of the whole subject, our conclusion is that the appellate jurisdiction of the circuit court in the class of cases to which the present case belongs was abolished by the act of March 3, 1891, and such appellate jurisdiction was transferred to the circuit courts of appeals.

It is, indeed, here further contended that the order of the district court was not a “final decision,” within the meaning of section 6 of the act of March 3, 1891, but the order was a finality for all pracpurposes. and, as raider ilie old system it would have been reviewable by the circuit court, so under the existing law it falls within ¡he appellate jurisdiction of this court

tifo pass, then, to the consideration of the merits of the controversy. The first assignment of error goes to the supposed insufficiency of the proof of the consideration of the debt alleged to be due to (he appellee, and the third assignment relates to the delay in offering the proof. We have carefully examined the record, and are of opinion that neither of these assignments is woil founded. After a thorough investigation of the claim, the register in bankruptcy held ¡he proof to be sufficient, and we throb rightly. The ovk'iwe hi support of the claim is entirely satisfactory to us, and the court below did not err in overruling the assignee's first, objection so the proof. The delay of tire creditor in tendering the proof was satisfactorily explained, fib, like most of Ms fellow creditors, postponed making proof, because until receutiy there was" no fund for distribution, nor expectation of any. There was no undue delay by die appellee after the assignee filed his account, ano! a meet I mg of creditors to declare a dividend was called.

But the appellant earnestly contends (and this fa the subjcci -matter of ¡he second assignment) that the appellee was debarred by section oC7.fi, Ilev. tic., from pixn mg his debt, because, prior to íhe tuIjudicaiioH in bankruptcy, he obtained a lien upon oroperty. in ihe slate of Michigan, of the bankrupt John Carrier, by an attaelrmeat, and that Hie value of the attached property was never ascevirhied by agreement, or by a, sale under the direction of the court, jvw was the property released and delivered up to the assignee. It, however, appears that the attachment was made within four mouths rout preceding die commencement of the bankruptcy proceedings, sod. therefore, by virtue of section 5044, it was dissolved, by opera üov of law, upon the execution of the assignment in bankruptcy. 35 V ethranore, very shortly after the attachment wac farmed, the dfatisei court, (lite court below,) upen the petition of Andrew If. Baum, a creditor of John Carrier, and upon the aPegution that the »,U«oilmen t was void, issued a writ of injunction against Ihe attaching creditor, restraining him from interfering, by execution, levy, sole, oi* otherwise, with Use property or estate of John. Carrier, the bankrupt. The injunction was promptly ¡.nrveti ou the sfladling creditor, and was obeyed by him: and lie ikirs1 realized anything from Mis attachment. Upon this slate of facts Ote court below lieicl Unit ihe attaching creditor was not debarred from proving Ms debí» In that conclusion we entirely concur. It fa fade to suggest that the injunction was procured by a parson, who had no title to and no authority over ihe attache 4 property. An assignee not having yet been chosen, it was, wo think, competen’,; for the court to act at the instance of a creditor. But even if irregular, the injunction bound (he appellee, and was respected by him. Never having beca dissolved by the court,it continued to be operative aftertheappoinimeut of the assignee. Moreover, we agree with the learned judge below, that the case does not come within the purview of section 5075. With the adjudication and assignment in bankruptcy the attachment fell, and tlie title to the property passed to the assignee unincumbered by any lien arising therefrom. We discover nothing whatever in the evidence which should deprive the appellee of the dividend awarded to him. The order of the court below is affirmed.  