A judgment of the bankruptcy court that a person against whom a petition has been filed is or is not a bankrupt, based upon the verdict of a jury demanded as of right under § 19 of the bankruptcy law, can only be reviewed by this court by writ of error and not by appeal. See 125 F. 576; 130 F. 881.
MR. JUSTICE WHITE, after making the foregoing statement, delivered the 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. 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 section 19 of the bankruptcy act, was reviewable only by writ of error. Section 25 a 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 a trial by jury had not been demanded, and where the court of bankruptcy proceeded 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). 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.