In re Christ's Church of the Golden Rule, 36408.

• Citation: 79 F. Supp. 42
• Decision Date: 16 August 1948
• Docket Number: No. 36408.,36408.
• Parties: In re CHRIST'S CHURCH OF THE GOLDEN RULE. SAMPSELL et al. v. EBBERT et al.
• Court: U.S. District Court — Northern District of California

79 F. Supp. 42

In re CHRIST'S CHURCH OF THE GOLDEN RULE.

SAMPSELL et al. v. EBBERT et al.

No. 36408.

District Court, N. D. California, S. D.

August 16, 1948.

Gendel & Chichester, of Los Angeles, Cal., for trustees.

Howard B. Crittenden, of San Francisco, Cal., for respondents.

YANKWICH, District Judge.

The petition of the trustees to review the Order of the Referee dated September 18, 1947, heretofore argued and submitted, is now decided as follows:

I.

The Order of the Referee, dated September 18, 1947, sustaining the objection of the respondents to the jurisdiction of the Court, to hear and determine the petition of the trustees seeking to adjudicate summarily the title to certain real and personal property claimed by the respondents, is hereby reversed.

II.

The Referee is directed to restore to the calendar the petition of the trustees, to allow the respondents a reasonable time in which to file such additional pleadings as may be necessary or desirable, and to conduct such further proceedings as may be deemed advisable in order to determine the title and/or the possession to the property involved.

Comment

The Referee, on an objection to jurisdiction, made the following finding:

"The court is unable to determine, from the record presented in the above-entitled matter, whether or not, on November 1, 1945 (at the time of the filing of the original petition in bankruptcy in the United States District Court for the Southern District of California wherein the primary proceeding in bankruptcy then was commenced, and now is pending), said bankrupt was in the actual or constructive possession of the real and/or personal properties, or any part thereof, referred to in said trustees' petition in this matter.

"The court, therefore, concludes as a matter of law that as against the respondents, August Ebbert and Grace Ebbert, and/or either of them that:

"The objection and the amended objection to the court's jurisdiction filed herein on behalf of August Ebbert and Grace Ebbert, should be sustained."

On the basis of this finding, the Referee, in effect, denied the petition of the trustees for the summary determination of the title to the property involved. The finding just quoted does not give to this court the benefit of the Referee's conclusions upon the facts. On the contrary, the Referee states that he is unable to determine whether the trustees were in actual or constructive possession of the property, so as to confer jurisdiction upon him to hear the petition and determine it on the merits.

Findings of a Referee are sustained unless they are clearly wrong and without any foundation in fact. Federal Rules of Civil Procedure, rule 52, 28 U.S.C.A. following section 723c; General Orders in Bankruptcy, order 36, 11 U.S.C.A. following section 53; and see my opinions in, In re Alberti, 1941, D.C.Cal., 41 F.Supp. 380; In re McNay, 1945 D.C.Cal., 58 F. Supp. 960, 962; In re Freelove, 1946, D.C. Cal., 74 F.Supp. 666; and cases there cited.

But here, because there is no finding on the subject of possession, we do not have the usual situation wherein, on specific facts found, we must examine the record only for the purpose of deciding if there is evidence to support the Referee.

The Referee, in sustaining the objection to jurisdiction, acted, presumably, on the contention of the respondents that the trustees had not met the burden of proving that they were in actual or constructive possession of the property. We must, therefore, determine whether the showing before the Referee presented a prima facie case of possession by the trustees so as to warrant a finding of its existence or nonexistence. The solution of this problem depends on the application to the facts in the record of the principles declared in the cases which followed Taubel-Scott-Kitzmiller Co., Inc. v. Fox, 1924, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770. The most important of these cases are: Harrison v. Chamberlin, 1926, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897; Schumacher v. Beeler, 1934, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Thompson v. Magnolia Petroleum Co., 1940, 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876; Cline v. Kaplan, 1944, 323 U.S. 97, 65 S.Ct. 155, 89 L.Ed. 97; Williams v. Austrian, 1947, 331 U.S. 642, 651, 652, 67 S.Ct. 1443, 91 L.Ed. 1718; City of Long Beach v. Metcalfe, 9 Cir., 1938, 103 F.2d 483; Bank of California National Ass'n v. McBride, 9 Cir., 1943, 132 F.2d 769; Honeyman v. Hughes, 9 Cir., 1946, 156 F.2d 27. Cases preceding the Taubel case are not very helpful, because that case repudiated some of the old criteria for determining the limits of summary jurisdiction, and established new ones. Since its rendition, I have had occasion to treat very elaborately in two opinions (In re Club New Yorker, D.C., 1936, 14 F.Supp. 694, and In re Rand Mining Co., D.C.1947, 71 F.Supp. 724) its impact and that of the later decisions on the problem.

It is, therefore, unnecessary to go into a detailed analysis of the conditions which warrant the intervention of the bankruptcy court by summary proceeding. It is enough to say that the cases teach that actual possession consists, as...