(dissenting).
It is with misgiving that I dissent from the conclusion reached by the majority of the court to the effect that the appeals in the foregoing proceeding must be dismissed because of lack of jurisdiction, for the conclusion my brethren have reached is in accord with numerous decisions in the United States Courts of Appeals. The Fifth Circuit, however, recently denied motions to dismiss appeals perfected under Section 24, sub. a, in Baxter v. Savings Bank, 92 F.2d 404, and Wilson v. Alliance Life Ins. Co., 102 F.2d 365, and treated appeals attempted under Section 24, sub. a without obtaining leave as though taken under Section 24, sub. b where leave was required.
The appeals here involve orders fixing compensation to the aggregate of hundreds of thousands of dollars. There is serious dispute both over the denial of compensation to some of the parties and over the amounts allowed to others. The awards affect great numbers of holders of participation certificates in one of the most extensive mortgage guaranty enterprises in New York. If a review of the orders may not be had the failure to obtain it will not be due to any neglect of the parties, but solely to their inevitable reliance upon our decision in London v. O’Dougherty, 2 Cir., 102 F.2d 524, which controlled the practice in this court until it was held erroneous by the Supreme Court in Dickinson Industrial Site Inc. v. Cowan, 308 U.S. -, 60 S.Ct. 595, 84 L.Ed. -, handed down on March 11, 1940.
Not only are the awards of compensation so substantial as to be very important to persons interested in the Prudence-Bonds Corporation, but the question whether this court has'or has not acquired jurisdiction over an appeal where a party has taken timely steps to institute it is one of general interest and is one which I believe the Supreme Court has never conclusively determined. In Shulman v. Wilson-Sheridan Hotel Co., 301 U.S. 172, 57 S.Ct. 680, 81 L.Ed. 986, the Supreme Court did hold that the Circuit Court of Appeals of the Seventh Circuit rightly dismissed an appeal which had been taken as though a matter of right, when it properly lay only under Section 24, sub. b of the Bankruptcy Act *42after leave had to be obtained. The decision, however, was not placed by the Supreme Court on lack of jurisdiction but upon failure to conform to statutory requirements. Under Section 250 of the Chandler Act the appeal in the present case should have been taken by applying to this court for leave, so that the mere filing of a notice of appeal in the District Court without petition to this cou'rt for leave was clearly irregular. Yet it does not follow that this court is entirely lacking in jurisdiction over the appeal. In Bryan v. Bernheimer, 181 U.S. 188, 21 S.Ct. 557, 45 L.Ed. 814; Holden v. Stratton, 191 U.S. 115, 24 S.Ct. 45, 48 L.Ed. 116, and Taylor v. Voss, 271 U.S. 176, 46 S.Ct. 461, 70 L.Ed. 889, the Supreme Court treated appeals taken as a matter of right and petitions to revise under Section 24, sub. b as sufficient to sustain jurisdiction over the appeals, whatever might be the proper mode of review, and authorized such additional steps as might be necessary to perfect the appeal. In other words, under those decisions, we may allow the appeals in the present case, as we certainly should do if the majority thought jurisdiction existed upon which further action might be founded. Although in most’ cases we should refuse to exercise our jurisdiction if the deviation from the correct procedure were not completely justified, the rigorous rule against permitting appeals where the time to institute them has elapsed would be sufficiently preserved if no more should be required to create jurisdiction than the filing of a notice of appeal. This would seem to be in conformity with the spirit of Rule 73(a) of the new rules.
The recent decision of the Supreme Court in Alaska Packers v. Pillsbury, 301 U.S. 174, 57 S.Ct. 682, 81 L.Ed. 988, may be thought to indicate that the filing in this court of a petition for allowance of an appeal is a jurisdictional requirement. But in that case the court only held that the Ninth Circuit was without power to make a rule effecting appeals in admiralty" by means of the mere filing of a notice of appeal where a statute in effect forbade such an appeal unless it were allowed after application duly made. The consideration of the case was apparently limited to the effect of the rule and the Supreme Court never dealt with the question whether the Circuit Court of Appeals could have sent the case back to the District Court to allow the appeal if it thought best. The decision only forbade the Circuit Court of Appeals from making a prospective rule covering all appeals in admiralty and precluding the District Court from exercising any discretion as to whether a particular appeal should be allowed or not.
In my opinion the motion to dismiss should be denied and the various appeals allowed.