In re Luken
| Decision Date | 12 August 1914 |
| Docket Number | 2062. |
| Parties | In re LUKEN. v. STEGER. McKEY |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harry L. Shaver, of Chicago, Ill., for petitioner.
Allen G. Mills, of Chicago, Ill., for respondent.
Before BAKER, SEAMAN, and MACK, Circuit Judges.
On July 24, 1913, an involuntary petition in bankruptcy was filed against Luken. Shortly afterwards he was adjudicated a bankrupt and McKey was elected trustee. About three weeks before the institution of the bankruptcy proceedings respondent Steger had caused a distress warrant to be served upon Luken, and had seized 100 bolts of cloth then belonging to Luken. The following October the trustee filed a petition in the bankruptcy court praying for a summary order upon Steger to turn over to the trustee the 100 bolts of cloth seized by Steger under the distress warrant. Steger entered his special appearance to contest the summary jurisdiction of the bankruptcy court, and alleged that prior to the institution of the bankruptcy proceedings he was in the actual possession of the 100 bolts of cloth and was asserting his right to retain possession by virtue of the distress warrant. On a hearing of the summary petition and the plea to the jurisdiction, the referee found that Steger at and before the filing of the petition in bankruptcy was in possession of the property in question, claiming a lien thereon adversely to the bankrupt, and thereupon dismissed the petition for want of summary jurisdiction. This order of dismissal was confirmed by the bankruptcy court, and the correctness thereof is presented to us by this original petition to review and revise.
In the Case of Goldstein and Moseson, 216 F. 887, 133 C.C.A. 91, No 2016, herewith decided, we held that a controversy between the trustee and a person who prior to the bankruptcy proceedings was in the actual possession of property under a claim of right should not be determined by the bankruptcy court under its summary jurisdiction against the protest of the adverse holder unless the adverse claim was without color. We found the adverse claim in that case to be substantial because in respect to the facts there was a conflict which, over the adverse claimant's protest against summary process, could only be settled properly in a plenary suit. In the present proceeding there is no conflict about the facts, and the trustee therefore contends that the bankruptcy court had summary jurisdiction to compel Steger to surrender possession by the summary process of a contempt order or other summary means. His argument is that, inasmuch as the distress warrant was served within four months prior to the filing of the petition in bankruptcy, it was therefore a lien through legal proceedings which was rendered null and void by section 67f of the Bankruptcy Act. In the case of a judgment or an attachment or other lien which was indisputably 'obtained through legal proceedings' within four months prior to the filing of the petition in bankruptcy, the legal proceedings being taken against the defendant therein while the defendant was insolvent, we might have no difficulty, the facts being undisputed, in determining that the adverse holder's claim of legal right to retain possession was so clearly without substance so void of color, as to bring him within the summary jurisdiction of the bankruptcy...
To continue reading
Request your trial
-
In re Prima Co.
...293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433; Taubel-Scott-Kitzmiller Co. v. Fox, supra; In re Goldstein, 7 Cir., 216 F. 887; In re Luken, 7 Cir., 216 F. 890. It is not denied that these appellants were adverse claimants (see Harrison v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897), or......
-
In re Midtown Contracting Co.
...how ill supported it may appear to be, a court of bankruptcy cannot summarily decide as to the validity of the claim.' In Re Luken, 216 F. 890, 133 C.C.A. 94 (1914), question was before the Seventh Circuit. The court said: 'In the present proceeding there is no conflict about the facts, and......
-
National Match Co. v. Empire Storage & Ice Co.
...Andre (C. C. A.) 135 F. 736; In re Radley Steel Const. Co. (D. C.) 212 F. 462; In re Yorkville Coal Co. (C. C. A.) 211 F. 619; In re Luken (C. C. A.) 216 F. 890; In re Rathman (C. C. A.) 183 F. 913; Galbraith v. Vallely, 256 U. S. 47, 41 S. Ct. 415, 65 L. Ed. The actual or constructive poss......
-
In re Bake-Rite Consolidated
...54 L. Ed. 402, 17 Ann. Cas. 969, 23 Am. Bankr. R. 579; In re Blum, 202 F. 883, 121 C. C. A. 241, 29 Am. Bankr. R. 332; Matter of Luken, 216 F. 890, 133 C. C. A. 94, 32 Am. Bankr. R. It is necessary here to determine as a question of fact where the right of possession lies, and the court has......