Deeley v. Cincinnati Art Pub. Co., 23 F.2d 920 (6th Cir. 1928)

*921 Guy A. Birge, of Detroit, Mich., for appellant.

Leonard H. Freiberg, of Cincinnati, Ohio, for appellee.

Before DENISON and MACK, Circuit Judges, and HICKENLOOPER, District Judge.

PER CURIAM.

The proceeding before the referee and review by the District Judge were most plainly among the "proceedings in bankruptcy" provided for in section 24b of the Bankruptcy Act, now U. S. Code, tit. 11, § 47 (11 USCA § 47). They involved only the right of a nonresident creditor, who had proved his claim, to withdraw it in order to avoid being subject to a liability in the bankruptcy court to respond for a preference said to have been given to him. It is plain that this court has no power of review, except as the power to revise in matter of law is given by 24b. Since the amendment of May 27, 1926 (11 USCA § 47), abolishing petitions to revise, the only review is by a special appeal, allowed in its discretion by this court, instead of in the usual manner. It is probably to be inferred, as the reason for this amendment, that it was thought the ordinary proceedings in bankruptcy ought not to be reviewed, and necessarily suspended, by any appeal which either party might invoke as a right, and that the appellate court would not allow frivolous or nonsubstantial appeals. Whether or not this is the reason, the fact is clear that we have no jurisdiction of an appeal under 24b which we did not allow. The appeal here was allowed in February, 1927, by the District Court, as it might be if taken under 24a or 25a (11 USCA § 48). See Rutherford v. Elliott (C. C. A. 6) 18 F.(2d) 956.

The appeal must be dismissed for lack of jurisdiction. We have the less regret in thus disposing of the case, because we are not satisfied that the permission to withdraw was erroneously granted.