Frederick Grant Shoe Company v. W. M. Laird Company/Opinion of the Court

Without considering whether the shoe company, appellant in this court, is not concluded by the decision of the circuit court of appeals upon the petition asking a review of the order of the district court in bankruptcy, denying the original motion to dismiss, we do not pass upon the question presented by this appeal, as we find we are without authority to do so. Elliott v. Toeppner, 187 U.S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133. In the cited case, answering a question certified from the United States circuit court of appeals for the sixth circuit, it was held that a judgment that a person is not a bankrupt, entered by a court of bankruptcy on a verdict of not guilty in a trial by jury, demanded as of right under § 19 of the bankruptcy act, was reviewable only by writ of error. Section 25a of the bankruptcy act, which authorizes appeals, as in equity cases, to be taken to the circuit court of appeals, among other cases, from a judgment adjudging or refusing to adjudge the defendant a bankrupt, was expressly considered, and it was held that the provision only applied to judgments adjudging or refusing to adjudge the defendant a bankrupt, 'when trial by jury is not demanded, and the court of bankruptcy proceeds on its own findings of fact.' The reasoning upon which the decision was based was, in substance, that, as in the character of proceeding under consideration the right to a trial by jury was absolute, such a trial was a trial according to the course of the common law, and judgments therein rendered are revisable only on writ of error. P. 332, L. ed. p. 202, Sup. Ct. Rep. p. 135. As, in the case at bar, a jury was demanded, the trial was before such jury, and their verdict determined the questions at issue, it follows that the record should have been brought to this court by writ of error, and not by appeal.

Appeal dismissed.