In the Matter of Robert Lee Benefiel, Bankrupt. C. R. Shannon and Jack Shannon, Dba C. J. Shannon and Sons v. Robert Lee Benefiel, Bankrupt-Appellant

The sole issue in this appeal is whether a petition for review of a referee’s decision was properly dismissed by the district court as out of time under the relevant statute, or whether, contrary to its holding, the district court under the statute possessed and ought to have exercised discretion as to whether to consider the petition despite its tardiness.

Appellee, a creditor, filed a petition to determine dischargeability of a debt. On December 4, 1972, following hearings, the referee entered a decree of nondischargeability. On December 15 the bankrupt’s petition for review of the referee’s decree was filed in the district court. The petition was dated December 13, and was placed in the mail on that day.

Appellee moved to dismiss the petition for review on the ground of untimeliness. The district court, applying § 39(c) of the Bankruptcy Act, 11 U.S.C. § 67 (c), granted the motion.

Section 39(c) of the Bankruptcy Act, 11 U.S.C. § 67 (c), provides in relevant part:

The portion in italics was added by amendment in 1960. Act of July 14, 1960, Pub.L.No.86-662, 86th Cong., 2d Sess., 74 Stat. 528 .

It is not disputed that the petition for review in this case was filed eleven…