Opinion · Court of Appeals for the Sixth Circuit

Rutherford v. Elliott

Rutherford v. Elliott, 18 F.2d 956 (6th Cir. 1927)

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1927-05-09
Topic
general

How later courts describe this case

  • “This court may consider whether state remedies have been 19 exhausted even if the state does not raise the issue”

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RUTHERFORD v. ELLIOTT,18 F.2d 956(6th Cir. 1927)
RUTHERFORD v. ELLIOTT.
No. 4849.
Circuit Court of Appeals, Sixth Circuit.
May 9, 1927.
Action between A.G. Rutherford and W.K. Elliott, trustee in bankruptcy of Pricy A. Varney and another, in which an appeal by the former was allowed by the District Judge. On motion to dismiss. Motion denied.
Wells Goodykoontz, Ira J. Partlow, and Randolph Bias, all of Williamson, W. Va., for appellant.

Browning Reed, of Ashland, Ky., and Stratton Stephenson, of Pikeville, Ky., for appellee.
Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
PER CURIAM.
This is an appeal under section 25a of the Bankruptcy Act. The appeal was allowed by the District Judge. Appellee now moves to dismiss because the allowance was not made by this court, and insists that the effect of the amendment of May 27, 1926, is to require such special allowance. The amendment was made in the language of section 24b. As amended, it reads:

"Such power shall be exercised by appeal and in the form and manner of an appeal, except in the cases mentioned in said section 25 to be allowed in the discretion of the appellate court."44 Stat. 664.

In view of the known purpose of this amendment, we think the paragraph should be interpreted as if it read:

"Such power shall be exercised by appeal and in the form and manner of an appeal, to be allowed, except in the cases mentionedPage 957in said section 25, in the discretion of the appellate court."

The same result will come from inserting, after the second "appeal," the words "but it is," or the clause as it is may be read with such expression as to show that "except" modifies "allowed." An intent to make so vital a change as it would be to abolish all appeals under section 25, unless they were specially allowed by the appellate court, would have been indicated in clearer language.

The motion to dismiss is denied.Page 1015