On Rehearing.
Since our opinion was announced and the judgment entered in this case, November 2, 1909, a petition for rehearing has been filed, from which, and a recurrence to the record, it appears that the petitioner did not ask in the court below for,the surrender of the possession of the' goods in question, but for the enforcement of a lien thereon and a privilege of priority over g-eneral creditors in the proceeds of a sale of the goods, in consideration whereof it is apparent that the judgment-should not have been for the return of the ¿possession, but should have been a declaration that the petitioner was entitled to prove its claim as a creditor, and was entitled to 'a lien upon the goods in question for the unpaid purchase money and to the extent of the amount realized, or to be realized, upon the sale thereof, the trustee should accord to the petitioner a lien thereon paramount to the claims of general creditors and make distribution of the px-oceeds accordingly.
The judgment so entered will therefore be reversed añd held for naught; and a new judgment will be entered in-the form and to the effect as above indicated to be correct, with costs to the ¿petitioner. The petition for rehearing will in other respects be overruled. But, before the entry of the judgment above directed, the court will, upon the request of the appellee now made, make and file a finding of the facts and conclusions of law as required by Order No. 36 of the General Orders in Bankruptcy prescribed by the Supreme Court (89 Fed. xiv, 32 C. C. A. xxxvi).
We think there was no error in entering the former judgment without a finding of facts and law, none having been requested. We agi-ee with the.Circuit Court of Appeals for the Seventh Circuit in holding, as it did in Knapp v. Milwaukee Trust Co., 162 Fed. 678, 679, 89 C. C. A. 467, that the third paragraph of General Order 36 does not require such findings to be made without request, but is intended to give the party a right to such findings, to be conceded if he demands it, which we think he should do, either before the opinion of the court is given, or, if thereafter, before the judgment is entered.