It is insisted by counsel for defendants that this court has no jurisdiction of the question presented, and this point necessarily first demands- attention. Section 14 of the bankrupt act (Rev. St. § 5039) provides “that the court, after due notice and hearing, may remove an assignee for any cause which, in the judgment of the court, renders such removal necessary or expedient.” It further provides that “at a meeting called by order of the court in its discretion for the purpose, or which shall be called upon the application of a majority of the creditors in number and value, the creditors may, with the consent of the court, remove any assignee by such a vote as is herein provided for the choice of assignees.”
This section places the removal of an as-signee entirely within the discretion of the district court, either acting alone or in connection with a meeting of the creditors. Can it be reasonably claimed that the action of the court in removing an assignee, or in consenting to a removal by a vote of the creditors is such a case or question as may be reviewed by virtue of the provisions of the second section of the act?
The court may remove '"for any cause which, in its judgment, renders such removal necessary or expedient.” It is the judgment of the district court touching the necessity or expediency of the removal that decides the question of removal, not the judgment of the circuit court. The only question is this: Was the removal necessary or expedient in the judgment of the district court? This is settled conclusively by the record and is not open to dispute or review. If this court could review the decision of the district court removing an as-signee, it could also review the discretion of the district court in calling a meeting of creditors to pass upon the question of removal, and could review the consent of the district court to a removal made by a meeting of the creditors. The discretion lodged with the district court to remove an as-signee is just as broad as the discretion to appoint an assignee under certain circumstances.
The 13th section of the bankrupt act (Rev. St. § 5034) declares: “If no choice is made by the creditors at said meeting, the judge, or if there be no opposing interest, tiie register, shall appoint one or more assignees.” So that if the creditors fail to elect, and there is an opposing interest, the judge is authorized to appoint assignees. This power to appoint under the 13th section is no more clearly conlided to the discretion of the judge than the power to remove under the ISth section. Can it be claimed for a moment that the appointment of assignees by the judge, made by virtue of the 13th section, could be reviewed by the circuit court. Suppose a creditor, or all the creditors, should think that the assignee appointed by the judge was an improper one, would the circuit court review the appointment? Clearly not, because the power and responsibility of the appointment is lodged under the circumstances where the district court has power to appoint at all, with the district court and not with the circuit court or with the creditors. If the circuit court cannot review an appointment of an assignee made by the district court, neither can it review the removal of an as-signee made by the same court. Dor both the power of appointment in the contingency mentioned and the power of removal is lodged in the discretion of that court.
These views are sustained by the decision of Mr. Justice Miller in the case of Woods v. Buckewell, [Case No. 17,991.]
I am of opinion, therefore, that the question presented by the petition of review is not a question which this court has the power to review; that in the appointment and removal of assignees, the discretion is lodged with the district court, and that discretion cannot be questioned by the circuit court or the judges thereof. It follows that the petition of review must be dismissed.