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bankrupt's motion to dismiss trustee's petition for order to compel bankrupt to turn over property is not final and not reviewable; Kirsner v. Taliaferro, 202 Fed. 54, 120 C. C. A. 305, order of bankruptcy court requiring bankrupt to turn over property to trustee and committing him until he does so, made in summary proceeding, is reviewable only by petition to revise; Barnes v. Pampel, 192 Fed. 527, 113 C. C. A. 81, proceedings by trustee to vacate lien of mortgagee not party to bankruptcy proceedings and not creditor of estate is not reviewable by petition to review as provided by Bankruptcy Act of 1898, but is reviewable by appeal; In re Stewart, 179 Fed. 228, 102 C. C. A. 348, in proceeding to revise under Bankruptcy Act of 1898, Circuit Court of Appeals is limited to review of matter of law and cannot review questions of fact involved in finding in order where there is evidence to support such finding or order; In re Farrell, 176 Fed. 508, 100 C. C. A. 63, decision denying summary order in bankruptcy to compel bankrupt's assignee to turn over assets to trustee in bankruptcy is reviewable on petition to revise under Bankruptcy Act of 1898, § 24b; In re New England Breeders' Club, 169 Fed. 588, 95 C. C. A. 84, holding District Court had jurisdiction of petition to vacate adjudication of bankruptcy and erred in vacating adjudication for want of jurisdiction without reference to laches urged by trustee.

Court's ruling on question of existence of adverse claim is open to

review.

Approved in Holden v. Stratton, 191 U. S. 119, 48 L. Ed. 118, 24 Sup. Ct. 47, holding certiorari proper method for review of decision of Circuit Court of Appeals in exercise of revisory power over inferior courts of bankruptcy; In re Friend, 134 Fed. 782, 67 C. C. A. 500, judgment confirming composition is reviewable by appeal under 30 Stat. 553, § 25a, since it acts as discharge; Hinds v. Moore, 134 Fed. 224, 67 C. C. A. 149, appeal lies to Circuit Court of Appeals from order of trustee ordering claimant to pay for goods of bankrupt delivered to him.

Distinguished in First Nat. Bank v. Chicago Title etc. Co., 198 U. S. 291, 49 L. Ed. 1055, 25 Sup. Ct. 693, no appeal from bankruptcy court deciding possession, decreeing sale, determining rights of adverse claimant; Schweer v. Brown, 195 U. S. 172, 49 L. Ed. 145, 25 Sup. Ct. 15, no direct appeal to Supreme Court from District Court decision that adverse claim to money not made when bankruptcy petition filed; First Nat. Bank v. Klug, 186 U. S. 204, 205, 46 L. Ed. 1127, 1128, 22 Sup. Ct. 900, holding no direct appeal will lie to Supreme Court from judg ment of District Court dismissing petition in involuntary bankruptcy where bankrupt was engaged in farming.

Where real adverse claim existed in fact, bankruptcy court must decline jurisdiction.

Approved in In re New York Car Wheel Wks., 132 Fed. 204, follow. ing rule; In re Andre, 135 Fed. 739, 68 C. C. A. 374, under 30 Stat.,

957

MUELLER v. NUGENT.

184 U. S. 1-18

§ 69, p. 365, bankruptcy court cannot issue warrant to marshal to seize property in hands of one claiming, under attachment issued out of State court; In re Reynolds, 133 Fed. 589, trustee bringing action in State court to recover property taken after adjudication of bankruptcy on mortgage executed four months before petition filed, bound by that decision; In re Scherber, 131 Fed. 123, 124, petition of trustee in bankruptcy to recover property summarily, failure to allege respondent's claim colorable ousts bankruptcy court's jurisdiction on respondent's objection; In re Adams, 130 Fed. 789, bankruptcy court without jurisdiction where property delivered to claimant as part payment before filing of petition in bankruptcy; In re Hartman, 121 Fed. 941, holding transferee whose claim is attacked as transfer made in bad faith is adverse claimant and not subject to summary proceedings.

Distinguished in In re McMahon, 147 Fed. 686, 77 C. C. A. 668, where trustee has possession, bankruptcy court can determine suit by trustee to set aside mortgage as given within four months prior to bankruptcy; In re Moody, 131 Fed. 528, where necessary to preservation of estate that bankruptcy court take property, it will determine ownership where alleged transfer to claimant fraudulent; In re Leeds Woolen Mills, 129 Fed. 928, where bankrupt surrenders property to receiver appointed by court, bankruptcy court has jurisdiction to determine ownership between trustee and adverse claimant.

What amounts to adverse holding of property acquired from bankrupt. Note, 8 L. R. A. (N. S.) 1236.

The bankruptcy court has power and duty to investigate basis of adverse claim.

Approved in Louisville Trust Co. v. Comingor, 184 U. S. 25, 46 L. Ed. 416, 22 Sup. Ct. 296, holding bankruptcy court without jurisdiction to proceed summarily against general assignee for money retained as commissions where latter made formal protest against jurisdiction; In re Teschmacher, 127 Fed. 730, holding where third person claims property alleged to belong to bankrupt, bankruptcy court has jurisdiction to inquire whether property is held by bankrupt's agent; In re Weinger, 126 Fed. 876, holding bankruptcy court acts within its duty and jurisdiction in determining that claim to bankrupt's property seized under abuse of process is not colorable; In re Knight, 125 Fed. 38, holding receiver of State court appointed after assignment, and within four months, holds subject to rights of general creditors; In re Breslauer, 121 Fed. 914, holding bankruptcy court has jurisdiction to determine whether claim asserted by bank to proceeds of sale of bankrupt's goods was adverse when petition filed; In re Davis, 119 Fed. 953, 954, 955, holding bankruptcy court has jurisdiction by summary proceedings to require bank holding deposit in fiduciary capacity to pay same to trustee; In re Waterloo Organ Co., 118 Fed. 905, holding mortgagee taking possession of property after mortgagor's bankruptcy is not such

an adverse claimant as to oust bankruptcy court's jurisdiction; In re Michie, 116 Fed. 750, 751, holding court of bankruptcy has no jurisdiction over controversy between trustee and transferee of bankrupt where latter questions jurisdiction and claims transfer valid.

Distinguished in In re Waukesha Water Co., 116 Fed. 1010, holding bankruptcy court has no jurisdiction to summon before it in order to show cause parties residing in another jurisdiction.

Commitment until assets of bankrupt are surrendered is not imprisonment for debt.

Approved in Kirsner v. Taliaferro, 202 Fed. 61, 120 C. C. A. 305, holding bankruptcy court should be satisfied of bankrupt's ability to comply with order to turn over property before committing him for refusal to obey order, and remanding case with liberty to court below to commit if it deems such proceeding advisable; In re Cole, 163 Fed. 183, 23 L. R. A. (N. S.) 255, 90 C. C. A. 50, in proceedings against bankrupt for contempt in refusing to obey order for payment of money, record should show that issue of contempt has been made and bankrupt had opportunity to be heard; In re Graessler, 154 Fed. 479, 83 C. C. A. 304, District Court may commit for contempt person refusing to obey order of referee to pay proceeds of sale under void attachment to trustee in bankruptcy.

Distinguished in Stuart v. Reynolds, 204 Fed. 719, 724, 123 C. C. A. 13, fact that bankrupt has committed crime by which property has passed out of his possession may be ground for prosecution, but will not justify proceeding for contempt for failure to comply with order to deliver property not in his present possession; In re Holden, 203 Fed. 233, 121 C. C. A. 435, in absence of finding that bankrupt is in possession of withheld assets, affidavit that he is unable to comply with referee's order is sufficient answer to contempt proceeding; Morehouse v. Pacific Hardware etc. Co., 177 Fed. 340, 100 C. C. A. 647, order to show cause why petitioners should not be punished for contempt in violating injunction of bankruptcy court in collateral matter, is not "proceeding in bankruptcy" subject to review on original petition under Bankruptcy Act of 1898.

Constitutionality of imprisonment for debt. Note, L. R. A. 1915B, 650.

Referee in bankruptcy may in first instance enter order to show cause. Approved in In re Kramer, 218 Fed. 140, in summary proceeding by trustee to require third person to pay money held in secret trust for bankrupt, court may determine whether such person has bankrupt's money; In re Leigh, 208 Fed. 488, affirming summary order of referee for return of payment made to creditor on execution after filing of bankruptcy petition; In re Logan, 196 Fed. 685, referee in bankruptcy has power to determine whether deed of farm to third person prior to filing of petition was adverse claim or colorable and fictitious, where bankrupt retained possession; In re Gill, 190 Fed. 728, 111 C. C. A. 454, holding

959

MUELLER v. NUGENT.

184 U. S. 1-18 District Court and referee were without jurisdiction to determine summarily controversy between trustee and adverse claimant; In re Frankel, 184 Fed. 540, granting motion to punish bankrupt for contempt in disobeying order of referee to pay over money to trustee; In re L. B. Pickens & Bro., 184 Fed. 955, 956, question whether assignment of bond is absolute or as security is not to be determined in summary proceeding, but in plenary suit; In re Richards, 183 Fed. 505, 507, committing bankrupt for contempt in disobeying order of referee to pay trustee five hundred dollars as withheld assets; In re Frank, 182 Fed. 799, 105 C. C. A. 226, referee in bankruptcy had jurisdiction of petition of trustee to turn over property of bankrupt although averments of petition were indefinite or uncertain; Mound Mines Co. v. Hawthorne, 173 Fed. 886, 97 C. C. A. 394, where third party claims interest in property in possession of trustee, referee may by summary proceeding require third party to appear in bankruptcy court and present his claim, and may adjudicate rights of parties; In re Hayden, 172 Fed. 625, referee has jurisdiction to inquire whether claim is really adverse, but on finding it is adverse he is without jurisdiction to proceed further; In re Walsh Bros., 163 Fed. 355, where third party acquires possession of property from bankrupt prior to bankruptcy and claims it in good faith as owner, referee in bankruptcy cannot determine his right thereto on application by trustee for summary order requiring him to return it as voidable preference; Knapp & Spencer Co. v. Drew, 160 Fed. 417, 87 C. C. A. 365, under Bankruptcy Act of 1898 and order No. 12 of Supreme Court, referee may issue summary. order to compel creditor to pay to trustee money received from bankrupt's assets; In re Graessler & Reichwald, 154 Fed. 479, 83 C. C. A. 304, referee has power to make summary order to require proceeds of sale of bankrupt's property taken on void attachment, to be paid to trustee; McMahon v. Pithan, 166 Iowa, 505, 147 N. W. 922, order of referee allowing mortgagee to proceed against mortgaged property after contest as to amount of debt, but without objections to validity is conclusive, and creditor cannot sue to recover property; dissenting opinion in Skubinsky v. Bodek, 172 Fed. 337, 97 C. C. A. 38, majority holding Bankruptcy Act of 1898 does not authorize reference for examination of bankrupt before his adjudication.

Distinguished in In re Ballou, 215 Fed. 813, referee cannot in summary proceeding compel corporation to issue stock to trustee pursuant to agreement of promoters to issue stock to bankrupt for his services; In re Green, 207 Fed. 695, where assets were out of bankrupt's possession when petition was filed, transferee testifying to purchase of property in good faith, is entitled to have facts determined in plenary suit, though testimony may appear incredible; In re Blum, 202 Fed. 885, 121 C. C. A. 241, holding claim of bankrupt's wife to money was adverse and denying referee's jurisdiction to determine claim; In re F. M. & S. Q. Carlile, 199 Fed. 614, 616, referee cannot in summary proceeding recover choses in action pledged by bankrupts to receiver of bank to secure overdraft

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within four months of bankruptcy; In re Bacon, 196 Fed. 989, 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; In re Tracy, 179 Fed. 367, 102 C. C. A. 644, practice is to refer petitions of reclamation of property from trustee to special master instead of referee in bankruptcy; In re Peacock, 178 Fed. 856, referee in bankruptcy has no jurisdiction to order third persons in possession of property claimed by trustee, to deliver it to trustee, where such possession is based on bona fide adverse claim.

On adjudication, title to bankrupt's property becomes vested in trustee. Approved in Smith v. Au Gres Twp., 150 Fed. 264, 9 L. R. A. (N. S.) 876, 80 C. C. A. 145, under Rev. Stats., § 858, after death of bankrupt, witness can testify against trustee as to bankrupt's admission concerning estate; Erie R. Co. v. Dial, 140 Fed. 691, 72 C. C. A. 183, goods sold to bankrupt shipped and unloaded on platform near his place when taken by bankrupt and used, held to entitle vendor to recover from trustee; Glidden v. Massachusetts Hospital Life Ins. Co., 187 Mass. 541, 73 N. E. 539, where trustee in bankruptcy appointed after contracting with building association for money, payment under contractor goes to trustee; McFarlan Carriage Co. v. Wells, 99 Mo. App. 647, 74 S. W. 879, holding State court obtained jurisdiction of bankrupt's goods seized in replevin before adjudication in bankruptcy court, though after filing of petition; 'Moore Mfg. Co. v. Billings, 46 Or. 404, 80 Pac. 424, after adjudication in bankruptcy, creditor cannot have set aside sale under chattel mortgage on ground of fraud; French v. White, 78 Vt. 95, 2 L. R. A. (N. S.) 804, 62 Atl. 36, stock deposited with creditor as collateral, in absence of assignment and notice to corporation, goes to trustee on bankruptcy of debtor.

Filing of petition in bankruptcy is caveat to world, and places property in custody of bankruptcy court.

Approved in Lazarus v. Prentice, 234 U. S. 266, 267, 58 L. Ed. 1307, 34 Sup. Ct. 851, property of bankrupt seized by ancillary receiver is held by virtue of terms of Bankruptcy Act to be turned over to court of original jurisdiction and no right could be acquired by assignment subsequent to filing of petition; Cameron v. United States, 231 U. S. 717, 58 L. Ed. 452, 34 Sup. Ct. 244, filing of petition places property of bankrupt in custody of court and examination may be ordered any time thereafter under section 21a of Bankruptcy Act; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 306, 56 L. Ed. 213, 32 Sup. Ct. 96, property of bankrupt is in custodia legis from time of filing of petition and creditors cannot attach property, but bankruptcy court cannot deny adjudication and hold jurisdiction over estate for purpose of allowing reorganization by some of creditors; Hiscock v. Varick Bank of New York, 206 U. S. 41, 51 L. Ed. 953, 27 Sup. Ct. 681, Bankruptcy Act of 1898 does not de

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