was adverse and denying referee's jurisdiction to determine claim; First Nat. Bank v. Hopkins, 199 Fed. 875, 876, 118 C. C. A. 321, where bank attempted to set off bankrupt's notes against his deposits, which were in smaller amount, and deposits were entered on books to general credit of bankrupt, bank's claim was an adversary one, which could be determined only in plenary suit between bank and trustee; In re Franklin Suit & Skirt Co., 197 Fed. 599, bankruptcy court may by summary order require persons having possession of bankrupt's property without real claim thereto, to turn over property to trustee; In re Logan, 196 Fed. 685, referee in bankruptcy has power to determine whether third person receiving deed to farm prior to filing of petition in bankruptcy is adverse claimant; In re Mimms & Parham, 193 Fed. 278, where trustee is not in actual possession and trust company asserts adverse claim and possession by its tenant, rights of parties must be settled in plenary suit; In re Howe Mfg. Co., 193 Fed. 528, trustee of bankrupt corporation cannot enforce stockholder's liability for unpaid subscription in summary proceeding; In re Raphael, 192 Fed. 876, 113 C. C. A. 198, petition by trustee to compel attorney to pay money received prior to bankruptcy and claimed as his own is plenary proceeding and cannot be disposed of summarily in bankruptcy court; In re Rathman, 183 Fed. 921, 923, 106 C. C. A. 253, mortgagee having lien on bankrupt's property before petition in bankruptcy is filed is adverse claimant; Staunton v. Wooden, 179 Fed. 62, 102 C. C. A. 355, claim of possession based solely on attachment lien, annulled by adjudication in bankruptcy, is not adverse claim and person in possession may be required by summary order to deliver property to trustee in bankruptcy; In re Farrell, 176 Fed. 507, 100 C. C. A. 63, decision denying summary order to compel assignee for creditors under Ohio law to turn over assets to trustee in bankruptcy is reviewable on petition to revise; In re Hersey, 171 Fed. 1000, holding claim of trustee for creditors to compensation for services from fund in his possession under conveyance made prior to bankruptcy is determinable only in plenary suit and vacating order of referee, to compel payment of sum to trustee in bankruptcy; In re Walsh Bros., 163 Fed. 355, referee in bankruptcy cannot by summary order require third person, acquiring possession of property from bankrupt prior to bankruptcy proceedings and claiming it as owner, to surrender it to trustee as voidable preference; In re L. Rudnick & Co., 160 Fed. 906, 88 C. C. A. 85, sheriff having possession of property by writ of replevin from State court prior to bankruptcy proceedings cannot be compelled by summary order to surrender property to receiver; Orr v. Tribble, 158 Fed. 898, sheriff having actual possession of property under valid levy of writ from State court, at time owner is adjudged bankrupt is not guilty of contempt for refusal to surrender property to receiver in bankruptcy on summary demand, where he was acting in good faith under advice of counsel; In re Sunseri, 156 Fed. 105, bankruptcy court has no jurisdic

tion to determine adverse claim of third person; Comingor v. Louisville Trust Co., 128 Ky. 705, 711, 129 Am. St. Rep. 322, 108 S. W. 952, 954, trustee in bankruptcy may sue in his own name without joining beneficiary, to compel bankrupt's assignee for benefit of creditors to settle his account and pay over amount belonging to estate; Morning Telegraph Pub. Co. v. S. B. Hutchinson Co., 146 Mich. 44, 8 L. R. A. (N. S.) 1232, 109 N. W. 44, property held adversely by trustee for creditors at time of filing of petition in bankruptcy is not subject to summary appropriation by bankruptcy court, and State court has jurisdiction of suit in replevin by another adverse claimant; Carlson v. City of Helena, 38 Mont. 584, 101 Pac. 164, denying motion to dismiss appeal on ground that taxpayer's action to enjoin city from issuing bonds. for water system is collusive, though counsel for defendant assisted in preparing complaint, where evidence does not show plaintiff had knowledge of this fact; In re Gibson, 22 Okl. 870, 98 Pac. 924, where third person ruled to show cause denies having property of bankrupt and claims that money received from bankrupt was returned before filing of petition, referee cannot try issue summarily; In re Bombino, 44 Utah, 148, 138 Pac. 1157, where assignment for benefit of creditors is made within four months of bankruptcy, State court cannot allow claims for services, except those rendered before bankruptcy proceedings were instituted;

Distinguished in In re Louis Neuburger, 233 Fed. 702, sale of bankrupt's property by assignee for creditors under order of State court after adjudication, of bankruptcy, known to assignee, is void; In re Hopkins, 229 Fed. 380, affirming summary order directing bankrupt's wife to pay sum of money to trustee in bankruptcy, where objection that question should be determined in plenary suit is not made at time of proceeding, but on petition to review; In re Karp, 228 Fed. 800, bankrupt's assignee is liable for loss incurred by him in carrying on business after petition in bankruptcy was filed; In re Stewart, 179 Fed. 225, 102 C. C. A. 348, assignee for benefit of creditors under State law is agent of assignor and not adverse claimant, and bankruptcy court may make summary order requiring him to turn over funds to trustee, notwithstanding claims for commissions.

Bankruptcy court having jurisdiction to make preliminary inquiry as to whether claim is adverse cannot determine merits without consent of adverse claimant.

Approved in Simmons v. The Steamship Jefferson, 215 U. S. 137, 17 Ann. Cas. 907, 54 L. Ed. 128, 30 Sup. Ct. 54, denying motion to dismiss appeal where decree dismissing for want of jurisdiction libel for salvage services to vessel in peril from fire on shore involved jurisdiction of court as Federal court; Toy Toy v. Hopkins, 212 U. S. 548, 53 L. Ed. 647, 29 Sup. Ct. 416, judgment of Circuit Court erroneously retaining jurisdiction of criminal case against Indian allottee is not

void and cannot be attacked collaterally in habeas corpus proceedings, but decision may be reviewed on error; Ex parte Wisner, 203 U. S. 460, 51 L. Ed. 268, 27 Sup. Ct. 150, action by citizen of Michigan against citizen of State of Louisiana brought in Circuit Court of Missouri cannot be removed to Federal court for District of Missouri; Metcalf v. Barker, 187 U. S. 177, 47 L. Ed. 128, 23 Sup. Ct. 72, holding bankruptcy court without jurisdiction to enjoin proceedings in judgment creditors' action commenced before passage of bankruptcy act; Gibbons v. Goldsmith, 222 Fed. 828, 138 C. C. A. 252, question whether District Court erroneously exercised jurisdiction to determine merits of adverse claim to property is reviewable by petition to revise under section 24b, of Bankruptcy Act; Galbraith v. Robson-Hilliard Grocery Co., 216 Fed. 845, 847, 133 C. C. A. 46, bankruptcy court having possession of real property has jurisdiction to determine validity of lien of mortgage executed by bankrupt to secure pre-existing debt; In re Ballou, 215 Fed. 815, referee in bankruptcy, having no jurisdiction of suit by trustee for specific performance of contract, does not acquire jurisdiction by consent; Spears v. Frenchton etc. R. Co., 213 Fed. 786, 130 C. C. A. 442, referee in bankruptcy cannot in summary proceeding hear and determine adverse claim of railroad to property alleged to belong to bankrupt in possession of railroad and to which railroad claims ownership, where railroad objects to jurisdiction; Le Master v. Spencer, 203 Fed. 214, 121 C. C. A. 416, adverse claimant to property in possession of marshal as receiver in bankruptcy, by filing petition in bankruptcy court for its recovery, consents to jurisdiction of such court to determine his rights in summary proceeding; In re Blum, 202 Fed. 886, 121 C. C. A. 241, bankrupt's wife asserting adverse claim to money did not consent to jurisdiction of bankruptcy court, but was entitled to determination of claim in plenary suit; In re Bacon, 196 Fed. 988, referee in bankruptcy cannot determine in summary proceeding right of bank asserting adverse claim to stocks pledged to it by bankrupt, subject to prior pledge of another bank having actual possession of stocks; Johnston v. Spencer, 195 Fed. 220, 115 C. C. A. 167, rights of trustee of bankrupt corporation and adverse claimant cannot be determined in summary proceeding; In re Iron Clad Mfg. Co., 194 Fed. 907, holding claim of third person to assets of bankrupt corporation was not so clearly unfounded as to authorize determination thereof in summary proceeding; In re Raphael, 192 Fed. 876, 113 C. C. A. 198, appeal lies from decree of bankruptcy court requiring bankrupt's attorney to account for payment received in contemplation of bankruptcy; In re Gill, 190 Fed. 728, 111 C. C. A. 454, response of bank that bankrupt owed overdraft and past due notes at time of deposit states good plea to jurisdiction of court and referee summarily to determine validity of claim; Hobbs v. Head & Dowst Co., 184 Fed. 415, 106 C. C. A. 519, affirming order denying petition of trustee to disallow mechanic's lien claim reduced to judgment in State court pending bankruptcy pro

979

LOUISVILLE TRUST CO. v. COMINGOR. 184 U. S. 18-26

ceedings; In re Rathman, 183 Fed. 918, 919, 921, 923. 926, 106 C. C. A. 253, bankruptcy court has no jurisdiction to determine, in summary proceeding, claim of mortgagee under mortgage made more than four months before bankruptcy; In re Stewart, 179 Fed. 226, 102 C. C. A. 348, holding assignee for creditors under State law filing account in bankruptcy proceedings and making no objection to jurisdiction until order of surrender was made, consented to jurisdiction; In re Hayden, 172 Fed. 625, 626, referee finding claim is adverse has no jurisdiction to proceed further and fact that respondents entered general appearance after overruling of motion to dismiss, does not confer jurisdiction; In re New England Breeders' Club, 169 Fed. 588, 95 C. C. A. 84, holding District Court had jurisdiction of petition of creditor to vacate adjudication of bankruptcy and erred in vacating adjudication for want of jurisdiction without considering objections made by trustee; In re Horgan, 164 Fed. 416, 90 C. C. A. 553, holding claim of surety on bail bond to amount expended in defense of prior petition to pay over money in suit by trustee to recover indemnity deposit made before bankruptcy, was adverse and court had no jurisdiction; In re Horgan, 158 Fed. 777, 86 C. C. A. 130, surety on bail bond receiving money from bankrupt before bankruptcy proceedings is adverse claimant and bankruptcy court was without jurisdiction to proceed summarily, where claimant did not consent, but specifically objected to jurisdiction before entry of decree; Linstroth Wagon Co. v. Ballew, 149 Fed. 966, 8 L. R. A. (N. S.) 1204, 79 C. C. A. 470, judgment favoring claimant's suit for property commenced in State court prior to petition, binding on trustee where he came in to defend; In re Andre, 135 Fed. 739, 68 C. C. A. 374, under 30 Stat., § 69, p. 365, bankruptcy court cannot issue warrant to marshal to seize goods in hands of one claiming under attachment issued out of State court; Tennessee Producer Marble Co. v. Grant, 135 Fed. 323, 67 C. C. A. 676, bankruptcy court will not restrain creditor's suit to enforce attachment lien in State court which obtained jurisdiction of subject matter before petition filed; In re Scherber, 131 Fed. 123, in petition of trustee to recover property summarily, failure to allege respondent's claim colorable only, defeats jurisdiction of bankruptcy court; In re Adams, 130 Fed. 789, bankruptcy court without jurisdiction where property delivered to claimant as part payment before filing bankruptcy petition; Central Grain etc. Exchange v. Board of Trade, 125 Fed. 469, 60 C. C. A. 299, holding party does not waive illegality in service by answering to merits after denial of motion to set aside service made on special appearance for that purpose; In re Chase, 124 Fed. 755, 759, 760, 59 C. C. A. 629, holding assignee under general assignment acquires lien on assets for necessary disbursements as for rent, and for reasonable value of services; In re Manning, 123 Fed. 180, holding bankruptcy court cannot in summary proceeding decide party's obligation to pay moneys obtained before assignment ousted him from trust; In re Hays

& Co., 117 Fed. 884, holding landlord cannot prove claim for rent accruing after adjudication in bankruptcy against tenant's estate; In re Michie, 116 Fed. 752, 753, holding bankruptcy court has no jurisdiction over suit by trustee against bankrupt's transferee where latter makes adverse claim and objects to jurisdiction; In re Rusch, 116 Fed. 272, 53 C. C. A. 631, holding power of review given Circuit Courts of Appeal by Bankruptcy Act of 1898 does not extend to independent suits by trustee against third persons; Tube City Min. etc. Co. v. Otterson, 16 Ariz. 316, 146 Pac. 207, suit in State court to foreclose lien brings property into control of court, and where suit is begun before filing of bankruptcy petition, State court may proceed to decree of foreclosure and sale without interference from bankruptcy court; Zeigler v. Zeigler Co., 84 Conn. 717, State court's administration of assets of insolvent corporation is suspended by proceedings in bankruptcy and State court's duty is to order assets paid over to receiver of Federal court on due request; T. E. Hill Co. v. Contractors' Supply etc. Co., 249 Ill. 307, 34 L. R. A. (N. S.) 456, 94 N. E. 545, Federal court has jurisdiction to determine whether corporation is engaged in certain pursuits as required by Bankruptcy Act, though it decides it was not so engaged, and is not subject to involuntary proceedings in bankruptcy; Louisville Dry Goods Co v. Lanman, 135 Ky. 171, 135 Am. St. Rep. 451, 28 L. R. A. (N. S.) 363, 121 S. W. 1044, State court having taken jurisdiction may adjudge recovery by creditor against debtor in personam, staying execution until application for discharge in bankruptcy has been acted upon by Federal court; McFarlan Carriage Co. v. Wells, 99 Mo. App. 648, 74 S. W. 879, holding State court has jurisdiction to continue replevin action begun by creditor after filing of petition of involuntary bankruptcy and before adjudication; Goodnough Mercantile Co. v. Galloway, 48 Or. 244, 84 Pac. 1051, State court has no jurisdiction of suit against trustee in bankruptcy to foreclose equitable lien on personal property, and answer of trustee praying for affirmative relief does not confer jurisdiction.

Distinguished in Detroit Trust Co. v. Pontiac Sav. Bank, 196 Fed. 32, 115 C. C. A. 663, where bankrupt's trustee sues to recover payment to creditor in Federal court where consent of defendant was necessary, general appearance and answer to bill without objecting to jurisdiction of particular Federal court waives objection; Horner-Gaylord Co. v. Miller, 147 Fed. 302, bankruptcy court will appoint receiver and issue injunction where bill shows fraudulent transfer, transferee secreting same; In re Noel, 137 Fed. 097, where injunction restraining foreclosure dissolved on mortgagee's promise to pay proceeds into court, bankruptcy court can determine validity of mortgage.

Miscellaneous. Cited in United States Brick Co. v. Middletown Shale Brick Co., 228 Pa. 88, 77 Atl. 397, appointment of receiver, and not filing of bill for appointment, ends right of debtors of insolvent com