Finne

This is an involuntary bankruptcy proceeding in which the district court dismissed the petition of certain creditors upon the motion of the alleged bankrupt for a non-suit. Petitioners appealed as in equity, the record complying with the provisions of the Equity Rules, 28 U.S.C.A. following section 723. The alleged bankrupt demanded a jury trial, the jury was impanelled, the trial begun, and, upon the evidence adduced by the petitioners, the alleged bankrupt moved for an order of nonsuit and dismissal of the petition. The motion was granted and the judgment of dismissal w-as entered July 29, 1938, prior to the effective date of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The appellee contends that his demand for the jury and the commencement of the trial before it was a sufficient submission to the jury of the questions invqlved to constitute a trial by the jury; hence, appellee claims the record made pursuant to the Equity Rules brings nothing before us because a jury trial in a bankruptcy case is a trial at common law requiring a bill of exceptions on appeal. Elliott v. Toeppner, 187 U.S. 327, 335 , 23 S.Ct. 133 , 47 L.Ed. 200 .

Appellants…