Opinion
No. 4414.
April 10, 1939.
Appeal from the District Court of the United States for the Eastern District of South Carolina, at Florence, in Bankruptcy; Frank K. Myers, Judge.
Proceeding by Melvin Hyman, as trustee in bankruptcy of Joseph Benjamin Lane, bankrupt, against R.W. McLendon and others. On petition by the trustee for writs of prohibition and mandamus to require the Judge of the United States District Court for the Eastern District of South Carolina to refrain from proceeding with the trial of a cause in that court.
Application denied.
Marion W. Seabrook, of Sumter, S.C. (L.D. Jennings, of Sumter, S.C., Royall Wright, of Florence, S.C., and C.B. Ruffin, of Hartsville, S.C., on the brief), for appellant.
Henry E. Davis, of Florence, S.C. (Samuel Want, of Darlington, S.C., and Henry C. Jennings and R.H. Singletary, both of Bishopville, S.C., on the brief), for appellees.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
This is an application for a writ of prohibition or mandamus, or both, to require the Judge of the United States District Court for the Eastern District of South Carolina to refrain from proceeding with the trial of a cause in that court relating to the right of the trustee in bankruptcy to property adversely claimed and to damages against the adverse claimants. On February 28, 1939 we dismissed an appeal from the order of the court below directing that the case be tried in that court and enjoining proceedings in the state court, on the ground that the appeal was not taken within the time allowed by statute. Hyman v. McLendon, 4 Cir., 102 F.2d 189. The application here is based upon facts appearing of record on that appeal. As the order entered in the bankruptcy proceeding could have been reviewed on appeal taken within the time allowed by statute, and as error, if any, in the lower court's holding as to jurisdiction can be corrected on appeal from final judgment, we think it clear upon the face of the proceedings, without requiring answer by the judge below, that the application for the writs should be denied. Ex Parte Harding, 219 U.S. 363, 372, 31 S.Ct. 324, 55 L.Ed. 252, 37 L.R.A., N.S., 392; Ex Parte Oklahoma, 220 U.S. 191, 209, 31 S.Ct. 426, 55 L.Ed. 431; Ex Parte Tiffany, 252 U.S. 32, 37, 40 S.Ct. 239, 64 L.Ed. 443; Ex Parte Chicago, R.I. P.R. Co., 255 U.S. 273, 275, 41 S.Ct. 288, 65 L.Ed. 631; In re Petition of United States, 9 Cir., 70 F.2d 357, 359; In re Eastman Kodak Co., 3 Cir., 48 F.2d 125, 127, 128.
Application denied.