days later he had conversed over the telephone with Perine on business. There were other affidavits tending to show that Perine was well on January 26th and 27th, and was traveling from place. to place in Southern California on business. Upon the second application for a continuance, as upon the first, there was absence of showing of diligence, and we are unable to discover that there was abuse of discretion in the action of the court in denying the motion. But if, indeed, the appellant was placed at a disadvantage on account of surprise, and the absence of its material witnesses, its rights, we think, were fully conserved by the order of the court made on the stipulation of the parties to refer the cause to a referee to take the testimony. The stipulation was that the cause be referred to a referee to take testimony and report the same to the court under an order of the court, "with such restrictions and limitations as the court in said order may direct." The court, on February 16, 1903, made an order requiring that the testimony be taken and filed on or before September 2, 1903. A large amount of testimony was taken, and it is embodied in the very voluminous record which is before us. Testimony was taken before the referee at Valdez beginning on February 19, 1903, and continuing until March 11, 1903. Depositions were taken in San Francisco, in Minneapolis, in New York, and in the Philippine Islands. On October 13, 1903, the appellees moved the court to fix a date for the final hearing. The appellant then applied to the court for leave to introduce further testimony. The court required that the application be submitted in writing, which was done. In support of the application the appellant filed the affidavit of Volney T. Hoggatt, and the appellees filed affidavits in opposition thereto. The case was then called for argument. The appellant declared that it had not closed its testimony; that it did not rest its case. The appellees claimed that the appellant had rested its case upon the testimony taken under the stipulation and the order of the court, and that the taking of its testimony had closed on July 11, 1903, under that order. The court ruled in accordance with the appellees' contention, and denied the application of the appellant to introduce additional oral testimony, and proceeded with the final hearing. It is assigned as error that the court compelled the appellant to stipulate to take depositions on open commissions, and it is contended that the stipulation was not voluntary, but was made under duress. This contention is not sustained by the record. The bill of exceptions shows that, after the motion for a continuance had been overruled, the court stated that, unless the appellant agreed to a reference, the case would be set down for immediate trial, and that the appellant was given two days in which to consider which course it would pursue. It chose to agree to the order of reference. There was no duress in this. Having failed to satisfy the court. with the merit of its motion for a continuance, it was permitted to exercise its option between proceeding to trial at that term or consenting to take the testimony as suggested by the court. It exercised its own free choice in the matter. Having taken the benefit of the order of the court and submitted its testimony thereun der, it is in no attitude to assert that the court erred in the premises. It is urged that the order of reference was illegal, for the reason that it did not require that the witnesses who were produced before the referee should read over and subscribe their testimony. There is no provision in the Alaska Code requiring that witnesses who are examined before a referee on such an order shall sign their testimony. Carter's Code of Alaska, p. 293, § 724, and the statutes of Oregon in force in Alaska before the Code, expressly permitted such. an order of reference (section 827, B & C. Comp. Or.). But if there was error of the court in omitting to insert in the order a requirement of that nature, the appellant should thereafter have objected to the introduction of the evidence. As it was, the appellant, although it objected to the form of the order, took its testimony thereunder, and, so far as the record shows, made no further objection on the ground of the alleged defect of the order. If insufficient time to take all the evidence was allowed by the order of the court, it was the duty of the appellant to move for further time before the expiration of the time fixed in the order. It made no such application until more than two months after the expiration of the time. It is assigned as error that the court, upon the evidence in the case, found in favor of the appellees on the merits of the controversy, and dismissed the bill. After a careful consideration of the evidence which is before us, and which we find it unnecessary to review at length, we think that the conclusion which was reached by the trial court as sustained by the very decided weight of the testimony. The decree of the District Court is affirmed. ROSS, Circuit Judge (dissenting). I am unable to agree to the judgment in this case. It appears from the record that the court below refused to hear the testimony of certain witnesses produced by the complainant on the trial, for the reason that the time fixed by the court for the taking of the evidence in the case in its order of reference had expired. That order of reference, it appears from the record, was based upon a so-called stipulation of the parties, which, in my judgment, cannot be properly regarded as a voluntary one. It appears that the cause only came to issue on the 9th day of February, 1903. It involved controverted questions of fact upon which, as the record shows, a large amount of testimony was taken; the record comprising eight large volumes of printed matter. It seems to me that each party to such a suit is legally entitled to a reasonable time after issue joined within which to prepare for trial. Yet the record contains this bill of exceptions: "On February 14, 1903 [only five days after the case had come to issue], this cause coming on for hearing after application [for] continuance had been overruled, over objections and exceptions of plaintiff the court announced in open court that the case would be referred for the purpose of taking the testimony, and attorneys for plaintiff objected to such reference; whereupon the court stated that, if plaintiff did not agree to such reference, that the case would be set down for immediate trial; and the hearing was then continued till the 16th of February, at 10 o'clock a. m., at which time the attorneys for plaintiff signed an agreement to refer the case, for the reason they were compelled so to do or at once go to trial. The above and foregoing bill of exceptions is allowed the 16th day of February, 1903. James Wickersham, District Judge." It was upon that so-called stipulation that the order of reference was based, which was held by the court below to preclude the complainant from introducing testimony of witnesses that it produced in court at the time of trial. I am unable to regard the so-called stipulation as a voluntary one, or to give my sanction to such proceedings. I therefore respectfully dissent from the judgment given here. GRAY v. GRAND FORKS MERCANTILE CO. et al. (Circuit Court of Appeals, Eighth Circuit. May 9, 1905.) 1. BANKRUPTCY-APPEAL FROM ALLOWANCE OF CLAIMS-PARTIES-TRUSTEE. 2. SAME ALIAS CITATION. Where an appeal to which necessary parties are omitted is seasonably docketed, but no application for the issuance of an alias citation to them is made before the expiration of the first term at which the case can be heard, the appeal becomes inoperative, in so far as it challenges rights of the omitted parties. 3. SAME AMOUNT IN CONTROVERSY. Bankr. Act July 1, 1898, c. 541, par. 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 34321, declares that appeals as in equity cases may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals from a judgment "allowing or rejecting a debt or claim of five hundred dollars or over." Held, that the restriction plainly has reference to the amount, not of the original claim, but of the allowance or rejection, and therefore to the amount which will be put in controversy by the appeal. Appeal from the District Court of the United States for the District of North Dakota. The appellant is the trustee, and the appellees are creditors, of the estate of one O. H. Johnson, who was adjudged a bankrupt on his voluntary petition. In his final report and account the trustee claimed credit for three items of $56.80, $9.75, and $2.50, paid to C. J. Murphy, C. E. McNamara, and Alice Blair, respectively, for legal and stenographic services rendered at the instance of the trustee in connection with objections made by him to the bankrupt's application for a discharge. In his final report and account the trustee also reported that, among others, there were "unpaid bills against said estate" as follows: Alice Blair, reporting testimony in connection with the hearing upon the bankrupt's application for a discharge, $5. John Lynch, clerk of court, fees connected with that hearing, $15; W. J. Carroll, sheriff, expenses incurred in an attachment of the goods of the bankrupt prior to the filing of the petition in bankruptcy, $143.40; George F. Porter, services as attorney for the trustee, $500; A. W. Gray, the trustee, expenses incurred and special services rendered in the administration of the estate, $272.22. The appellees, as general creditors, objected to the claim of the trustee's attorney, Porter, as excessive, and to the trustee's claim for special services as without foundation in fact and without authority in law. Other creditors, not parties to this appeal, objected to the items shown to have been paid to Murphy, McNamara, and Blair, and to the unpaid claims of Blair and Lynch, as not proper charges against the estate, and to the unpaid claim of Carroll as excessive, and not a preferred claim. Upon the hearing had upon these objections the referee made an order approving the payments made to Murphy, McNamara, and Blair, directing the payment of the unpaid claims of Blair, Lynch, and Carroll, allowing $75 for Porter's services and disallowing the balance of his claim, and allowing $122.22 to the trustee for traveling and other expenses incurred by him and disallowing his claim for special services amounting to $150. The trustee, Porter, and some of the creditors excepted to the order of the referee, and upon their petition the referee certified to the District Court the questions presented in respect of each of these claims, together with the evidence and his findings and order. In the District Court a decree was entered sustaining the action of the referee, and to obtain a reversal of that decree the present appeal was taken by the trustee within 10 days thereafter. The assignments of error challenge the allowance of the claims of Murphy, McNamara, Blair, Lynch, and Carroll, and the partial disallowance of the claims of Porter and the trustee. The appellant asks that the decree of reversal include a direction that Murphy, McNamara, and Blair be required to return to the trustee the moneys paid to them upon their claims. Porter did not appeal, but he procured the allowance of the trustee's appeal, and has participated in its prosecution. No citation or other notice of the appeal was issued or given to Murphy, McNamara, Blair, Lynch, or Carroll, and no appearance on behalf of any of them has been entered in this court. Sydney Anderson (George F. Porter, on the brief), for appellant. Daniel B. Holt (John D. Benton and Verner R. Lovell, on the brief), for appellees. Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges. VAN DEVANTER, Circuit Judge, after stating the case as above, delivered the opinion of the court. The principle that a court cannot directly adjudicate the rights of a person who is not before it is fundamental (Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792), and is as applicable to courts exercising appellate jurisdiction as to those whose jurisdiction is original (Terry v. Abraham, 93 U. S. 38, 23 L. Ed. 794; Davis v. Mercantile Co., 152 U. S. 590, 14 Sup. Ct. 693, 38 L. Ed. 563; Dodson v. Fletcher, 24 C. C. A. 69, 78 Fed. 214; American Loan & Trust Co. v. Clark, 27 C. C. A. 522, 83 Fed. 230; Grand Island & W. C. R. Co. v. Sweeney, 43 C. C. A. 255, 103 Fed. 342; Marshall, Field & Co. v. Wolf Bro. Dry Goods Co., 57 C. C. A. 326, 120 Fed. 815). But one may be before a court so as to enable it to adjudicate his rights, and yet not be an actual party to the proceeding; as when he is represented by a receiver or trustee who is an actual party, and whose duty it is to protect his interests. He is then what is termed a quasi party, and is bound by the judgment or decree, unless there be fraud or collusion between his representative and the adverse party. Kerrison, Assignee, v. Stewart, 93 U. S. 155, 23 L. Ed. 843; Atlantic Trust Co. v. Dana, 62 C. C. A. 657, 670, 128 Fed. 209, 222; Chatfield v. O'Dwyer, 42 C. C. A. 30, 101 Fed. 797; In re Utt, 45 C. C. A. 32, 105 Fed. 754; Foreman v. Burleigh, 48 C. C. A. 376, 109 Fed. 313; In re Lewensohn, 57 C. C. A. 600, 121 Fed. 538. By the decree challenged by this appeal it was adjudged that the claims of Murphy, McNamara, Blair, and Lynch represent legitimate expenses and costs of administration; that the claim of Carroll, while not of this character, is yet a lawful one, and entitled to priority; and that each of these claims is properly payable out of the bankrupt's estate. The question whether the decree shall stand or be reversed is obviously of direct interest to the claimants whose claims are sustained by it, and because of this interest the question cannot be determined without affording these claimants an opportunity to be heard in defense of the decree. That this is so is made plain in Terry v. Abraham, supra, where the court, while doubting the existence of any good reason for the decree challenged by the appeal in that case, said: "But there may have been a good reason for it; and, if the creditors who shared in the distribution were here as parties, they might be able to sustain the action of the court below. At all events, as no order on the subject could now be made without disturbing their rights under the decree, and as appellant has not thought proper to bring them here, the decree cannot be changed on that subject." ors. The only parties respondent to this appeal are two general creditThe citation is directed to them only. The reason for their presence lies in the fact that it was upon their objections that the claims of Porter and the trustee were partially disallowed. Murphy, McNamara, Blair, Lynch, and Carroll are not before this court as actual parties, and are not represented by any one who is an actual party. The trustee is not their representative. He is seeking to strike down the allowance of their claims, and in this is the representative of the general creditors of the estate. Chatfield v. O'Dwyer, supra. Of course he cannot represent or speak for both sides to the controversy. In this situation no change can be made in the decree that will disturb the rights of Murphy, McNamara, Blair, Lynch, or Carrol thereunder. As the appeal was seasonably taken, and was seasonably docketed here, it would have been within the power of this court to direct the issuance of an alias citation to the omitted parties, and to have allowed time for its service, had application therefor been made before the expiration of the first term at which the case could have been heard. Lockman v. Lang, 65 C. C. A. 621, 132 Fed. 1. Such an application was not made, although the necessity therefor appears to have been brought to the attention of the appellant's counsel in ample time. Two full terms have now elapsed, and the appeal has become inoperative in so far as it challenges the claims of those who have not been brought into this court. Jacobs v. George, 150 U. S. 415, 14 Sup. Ct. 159, 37 L. Ed. 1127; Altenberg v. Grant, 28 C. C. A. 244, 83 Fed. 980; Railroad Equipment Co. v. Southern Ry. Co., 34 C. C. A. 519, 92 Fed. 541. But, apart from the presence or absence of necessary parties, this court is without authority upon this appeal to review the action of the court below in allowing the claims last mentioned, or in partially rejecting the claims of Porter and the trustee. Bankr. Act July 1, 1898, c. 541, § 25a (30 Stat. |