Appellants say that the district court erred in entertaining the petition for review because it was brought by a general creditor without any request to the trustee for such action. Behringer v. Lybrand Morgan, 10 Cir., 270 F.2d 670, and Heiser v. Woodruff, 10 Cir., 150 F.2d 867, recognize the rule that ordinarily a general creditor may not appeal from an order of the district court to the court of appeals without a request to the trustee and, if denied, a permissive order. We are concerned with a petition to the district court to review an order of the referee.
The appellants filed the notice of appeal as "claimants," which for aught that appears in the record must be considered as being synonymous with general creditors of the bankrupt corporation. In Heiser v. Woodruff, 150 F.2d 867, certiorari denied 326 U.S. 778, 66 S.Ct. 271, 90 L.Ed. 471, this Court outlined the procedure which a general creditor must follow to appeal from the allowance of another creditor's claim. In this connection Judge Bratton, speaking for the Court in the above entitled case, 150 F.2d at page 868, said:
" In districts which will not have appellate panels, appeal may be taken to the district court under the new 28 U.S.C. § 1334, Pub.L. No. 95-598 § 238, 92 Stat. 2668 (1978), which gives district courts jurisdiction over interlocutory orders of the bankruptcy courts. The bankruptcy judge does not stand in the same relationship to the district court that the district court does to this court. He is an officer of the district court, appointed by that court, 11 U.S.C. § 62(a), and deriving his jurisdiction and powers from that court, 11 U.S.C. § 66. Heiser v. Woodruff, 150 F.2d 867, 868 (10th Cir.), cert. denied, 326 U.S. 778, 66 S.Ct. 271, 90 L.Ed. 471 (1945). Parties before the bankruptcy judge are before the district court.
Neither is there anything contrary to this view in Woodruff v. Heiser, 10 Cir., 150 F.2d 873, at page 874, where the district judge on review reversed the referee and it was held that though the petitioner did not have the right to petition for review of the order, the district judge did have the power of its own motion to review the order of the referee allowing the claim. Cf. Heiser v. Woodruff, 10 Cir., 150 F.2d 867. The appeal, however, will not be dismissed because to do so would be in effect to uphold appellants' right to petition for, and that of the district judge, on their petition, to review the referee's order.
'" See also, Amick v. Mortgage Security Corp., 8 Cir., 30 F.2d 359; In re Cook's Motors, 1 Cir., 142 F.2d 369; Ross v. Drybrough, 2 Cir., 149 F.2d 676; Heiser v. Woodruff, 10 Cir., 150 F.2d 867. In view of these authorities, we do not regard as controlling the decision of this court in McDaniel v. Stroud, 4 Cir., 106 F. 486, expressing preference, under the facts stated, for the views set out In re Roche, 5 Cir., 101 F. 956.
Judgment vacated, insofar as it allowed the claim, and the cause remanded with directions. See also, 10 Cir., 150 F.2d 867. Louis A. Fischl and Thos. W. Champion, both of Ardmore, Okla. (H.A. Ledbetter, of Ardmore, Okla., on the brief), for appellants.
While one creditor in a proceeding in bankruptcy does not have the absolute right to petition for review of an order of the referee allowing the claim of another claimant which merely affects the estate generally, the court did not err in the exercise of its power to review the order of the referee allowing this claim. Heiser v. Woodruff, 10 Cir., 150 F.2d 867. Though the evidence relating to the claim was extensive and presented issues of fact, the trial court did not make any formal findings of fact and conclusions of law. It was the duty of the court to make findings and conclusions, in compliance with Federal Rule of Civil Procedure 52(a), 28 U.S.C.A. following section 723c. Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 60 S.Ct. 517, 84 L. Ed. 774; Kelley v. Everglades Drainage District, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485. And where the issues cannot be decided satisfactorily on appeal without findings of fact by the trial court, the judgment may be vacated and the cause remanded in order that specific findings may be made. Mayo v. Lakeland Highlands Canning Co., supra; Kelley v. Everglades Drainage District, supra.
This is not enough to satisfy the statute. In re Deena Woolen Mills, 114 F. Supp. 260 (D. Maine 1953); In re Grossman, 225 F. 1020 (S.D.N.Y. 1915); 2 Collier on Bankruptcy ¶ 39.19 (14th Ed. 1962). However, even if they do not so qualify, the court has authority on its own motion to review orders in bankruptcy since a referee is considered an arm of the bankruptcy court. Heiser v. Woodruff, 150 F.2d 867 (10th Cir. 1945). It is within the court's discretion to add to the record evidence not heard by the Referee.
See Dunsdon v. Federal Land Bank of St. Paul, 8 Cir., 1943, 137 F.2d 84. The Referee is not a court but an officer or arm of the Court and has no independent judicial authority which lies beyond the range of review of the bankruptcy court. Heiser v. Woodruff, 10 Cir., 1945, 150 F.2d 867, certiorari denied 326 U.S. 778, 66 S.Ct. 271, 90 L.Ed. 471. The only limitation on the power to review the Referee's actions is the provision of General Order 47 (following 11 U.S.C.A. § 53) that 'the judge shall accept his findings of fact unless clearly erroneous.'
This position is not sound. [1] The general rule is that the jurisdiction of the bankruptcy court continues until the estate is closed. ( In re Pittsburgh Railways Co., 253 F.2d 654; Heiser v. Woodruff, 150 F.2d 867, cert. denied 326 U.S. 778 [66 S.Ct. 271, 90 L.Ed. 471].) The estate may be reopened, however, "for cause shown."