Barnes v. Pampel

• Decision Date: 03 January 1912
• Docket Number: 2,142.
• Citation: 192 F. 525
• Parties: BARNES et al. v. PAMPEL et al.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F. 525

BARNES et al. v. PAMPEL et al.

No. 2,142.

United States Court of Appeals, Sixth Circuit.

January 3, 1912

John N Van Deman (Wicoff, Emmons & Needles and Van Deman, Burkhart &amp Smith, on the brief), for petitioners.

McMahon & McMahon, for defendant Kimpton.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

John P Pampel on September 4, 1904, and previous to his bankruptcy conveyed certain real estate to Edna Pampel. The latter, on September 13, 1904, conveyed the property to George W Pampel, who, on November 1, 1904, mortgaged the same to Kimpton. Proceedings in bankruptcy were begun against John P. Pampel September 19, 1904. March 18, 1905, the trustee in bankruptcy began suit in the District Court, by petition, alleging (in substance sufficient for this opinion) that the respective conveyances to Edna and George W. Pampel were made for the purpose of hindering, delaying, and defrauding the bankrupt's creditors; also (by amendment to petition) that the conveyances constituted an attempt to give George W. Pampel an unlawful preference; that the mortgage to Kimpton 'was given and received during the pendency of the proceedings in which said John P. Pampel was adjudged bankrupt, and whether or not it is a valid claim (petitioner) denies that it is a lien upon the property in question. ' The petition prayed that the deeds to Edna and George W. Pampel be set aside; that the mortgage given to Kimpton, as well as the mortgage given by John P. Pampel to the Dayton Savings & Trust Company, be decreed released and satisfied; and 'that the plaintiff have an order for possession of said real estate, and for all proper relief. ' Answers were filed by the several defendants, which were replied to, and proofs taken under the issues joined. A decree was made setting aside the conveyances to Edna and George W. Pampel; the rights of Kimpton being reserved for further consideration. Later decree was entered in the same proceeding sustaining Kimpton's liens on account of both mortgages (he having purchased the mortgage given by Pampel to the Trust Company), as well as for taxes paid; the court finding as a fact that Kimpton, as respects the mortgage given him by Pampel, was an innocent purchaser for value in good faith without notice.

This proceeding is brought under section 24b of the bankruptcy act, to revise this latter decree so far as it sustains the mortgage given by Pampel directly to Kimpton. Motion is made to dismiss the proceedings upon the grounds, first, that this court has no jurisdiction, because the review sought cannot be had under section 24b of the act; and, second, because the case was decided on questions of fact, which cannot be reviewed in this proceeding. Were we to entertain jurisdiction under section 24b, it is clear we could not review the determination of the lower court upon the questions of fact involved in the decree sought to be reviewed. Mueller v. Nugent, 184 U.S. 1, 9, 22 Sup.Ct. 269, 46 L.Ed. 405; First National Bank v. Title & Trust Co., 198 U.S. 280, 291, 292, 25 Sup.Ct. 693, 49 L.Ed. 1051; Courier-Journal Job Printing Co. v. Brewing Co. (C.C.A. 6) 101 F. 699, 703, 41 C.C.A. 614; In re Taft (C.C.A. 6) 133 F. 511, 513, 66 C.C.A. 385; In re Throckmorton (C.C.A. 6) 149 F. 145, 146, 79 C.C.A. 15; In re Stewart (C.C.A. 6) 179 F. 222, 228, 102 C.C.A. 348. But, in our opinion, the proceedings must be dismissed for lack of jurisdiction.

The distinction between 'proceedings in bankruptcy,' reviewable under section 24b and the 'controversies arising in bankruptcy proceedings,' appealable under section 24a, is clearly defined; the former including 'administrative orders and decrees in the ordinary course of bankruptcy between the filing of the petition and the final settlement of the estate.' and the latter including 'those independent or plenary suits which concern the bankrupt's estate and arise by intervention or otherwise between the trustees representing the bankrupt's estate and claimants representing some right or interest...