to grant a rehearing for the purpose of reinstating a lapsed right of appeal may be abused, but none of them except In re Stearns & White Co. deny the jurisdiction.
Concluding that I have jurisdiction, the petition for a rehearing is granted.
2. It is granted solely for the purpose of allowing the petitioner to present his appeal to the Circuit Court of Appeals.
I have stated the purpose of this order and will state the reasons which prompt it, because the Circuit Court of Appeals may desire to inquire whether there has been an abuse of discretion. The reasons why I believe that my discretion should be exercised in favor of the petitioner are as follows:
(a) My order allowing the claim was entered upon the sole ground of laches barring the defense offered, and therefore did not feel called upon to pass upon the fact questions raised by the defense. I think that in any case in which the court feels that the situation precludes a consideration of any phase of what may be called the merits, a review is desirable.
(b) The petitioner has some excuse for failing to appeal within the statutory period. He is not the trustee. The trustee originally presented, as attorney for the claimant, the claim which is now being resisted and represented the claimant over a long period of time. Whether he still continues to do so has not been made entirely clear to me, but at any rate it is easy to see that the trustee's double position has been a source of embarrassment to the petitioner and other creditors throughout the whole proceeding.
(c) The claim is a sizeable one, and a very able referee, after an exhaustive investigation, came to the conclusion that it was entirely without substance.
The foregoing is not to be taken as anything more than a statement of the grounds upon which I think that this case is proper for review on appeal. I express no opinion as to whether the petitioner's appeal can legally be prosecuted, or whether his right is gone beyond recall. That question I conceive to be for the appellate court. Furthermore, I entertain very little doubt as to the correctness of my ruling as to laches. Lastly, I believe that I have already considered every question which has been urged upon me at the presentation of this motion, and therefore think that anything further by way of a rehearing and reconsideration upon the merits would be unnecessary.
Having granted the petition for a rehearing, the argument at the presentation of that petition may be taken as the rehearing, and when the order granting this petition is entered, there may be entered immediately thereafter an order reaffirming the original decree of this court upon the certificate of review.
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