DocketNumber: Bankruptcy No. 82-9060
Citation Numbers: 26 B.R. 655
Judges: Glennon, Lavien, Lawless
Filed Date: 1/31/1983
Status: Precedential
Modified Date: 11/22/2022
Appellee, Precon, Inc., has moved to dismiss this appeal for lack of jurisdiction. Appellant timely filed its notice of appeal with the United States District Court rather than the First Circuit Bankruptcy Appel
The Motion to Dismiss the Appeal is denied. The Notice of Appeal was timely filed with the district court and effectively informed the appellee that an appeal was being taken which, after all, is one of the major purposes of the notice of appeal. Markham v. Holt, 369 F.2d 940, 942 (5th Cir.1966). The Supreme Court has noted that during the transition period it appears that appeals could properly be filed with the district court even though an appellate panel is in place. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., - U.S. -, 102 S.Ct. 2858, 2864 n. 7, 73 L.Ed.2d 598 (1982).
While not directly on point, certain rules indicate a liberal approach to this type of problem. Bankruptcy Rule 509(c) recognizes that even where papers are misfiled in the district court instead of the bankruptcy court, the papers will be considered properly filed as of the date filed with the district court. First Circuit Appellate Rule 4(a)(1) in Appendix A of the First Circuit Rules Governing Appeals (March 1, 1980), similarly provides for redirecting appeals misfiled with the Court of Appeals rather than the District Court. The cases cited by the mov-ant are not on point since they deal with notices of appeal that were not timely filed initially.
Accordingly, the Motion to Dismiss is denied.