Sims

From a judgment in favor of plaintiff in an action to recover an unlawful preference made by a receiver of bankrupt to defendant, the latter appeals.

Under 28 U.S.C.A. § 143 the terms of court controlling this case begin “on the first Mondays in April and October.” The judgment was entered on July 2, 1934, during the April, 1934, term.

The certificate to the bill of exceptions does not contain any statement that the bill of exceptions was settled within the term in which the judgment was rendered, or within such term as extended by order of the court, nor does the certificate contain any words or language from which such facts might be inferred. Orders extending the term do not appear in the bill of exceptions.

The District Court rules for Arizona provide as follows:

“Motions for new trial * * * shall * * * be filed * * * within 15 days after entry of judgment. * * * ” (Rule 37)

“A party desiring to have a bill of exceptions settled * * * shall prepare a draft thereof, and after serving a copy * * * file the same within 20 days after the entry of the judgment or order, or where there has been a motion for new trial, within 20 days from date of entry of order overruling such…

On Petition for Rehearing.

The bill of exceptions in this case was filed, settled, and approved after the expiration of the term at which judgment was rendered. It does not appear from the bill or from the judge’s certificate appended thereto that the term had been extended for that purpose. Appellee moved, on these grounds to strike the bill from the record, citing United States v. Payne (C.C.A. 9) 72 F.(2d) 593 . Appellant petitioned this court to return the bill to the District Court to afford appellant an opportunity to apply to that court for a nunc pro tunc order amending the certificate to show what appellant claims to be the fact, namely, that the bill was settled within the time prescribed by law, as extended by court orders, citing Patrick v. United States (C.C.A. 9) 77 F.(2d) 442 . We denied appellant’s petition, granted appellee’s motion, and affirmed the judgment. Appellant has petitioned for a rehearing.

Assuming the fact to be as represented by appellant, and that, if returned to the District Court, the judge’s certificate could and would be amended to show that the bill was settled in time, still the judgment would have to be affirmed, for the following…