In re Williams

• Decision Date: 12 February 1903
• Citation: 120 F. 34
• Parties: In re WILLIAMS.
• Court: U.S. District Court — Eastern District of Arkansas

120 F. 34

In re WILLIAMS.

United States District Court, E.D. Arkansas, Western Division.

February 12, 1903

Greaves & Martin and H. W. Currey, for the creditors.

Rose Hemingway & Rose, for the bankrupt.

The debtor is a gambler, traveling from place to place plying his vocation. He arrived at Hot Springs, Ark., in this district and had carried on his business there for two months prior to the filing of the petition to have him adjudicated a bankrupt, which was for a longer period than he has carried on his business or resided in any other district.

TRIEBER District Judge.

Has this court jurisdiction in bankruptcy when the party has not had his principal place of business, residence, or domicile within the district for more than three months preceding the filing of the petition in bankruptcy against him? Section 2 of the bankrupt act of 1898 (U.S. Comp. St. 1901, p. 3420) confers jurisdiction on the district court to (1) 'adjudge persons bankrupt who have had their principal place of business, residence, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof. ' It will thus be seen that, in order to adjudicate a debtor a bankrupt, such person must have had his principal place of business, residence, or domicile within that district for the preceding six months, or the greater portion thereof. The greater portion of what? There can be but one answer to this,-- the greater portion of the six months preceding the filing of the petition. This is the conclusion reached by the United States circuit court of appeals for the Seventh circuit, in Re Plotke, 44 C.C.A. 282, 104 F. 964; Collier, Bankr. p. 18.

The decisions under the bankrupt act of 1867, which have been cited by learned counsel for the petitioning creditors, are wholly inapplicable to the present act. Under that act jurisdiction was granted 'to the judge of the judicial district in which such debtor has resided or carried on business for the six months next immediately preceding the time of filing such petition, or for the longest period during such six months. ' Section 5014, Rev. St. This has properly been construed to invest that court with jurisdiction in whose district the debtor has carried on business or resided for the longest period during that time even if less than half of that period. But the present act only confers jurisdiction on the court of the district in which the debtor has carried on business, resided, or had his domicile for the longest period of the six months preceding. It is true, as urged by counsel, that in cases of this kind, where the debtor belongs to that roving class which never remains but for a short time in one place, as is the case in this proceeding, there can be no adjudication of bankruptcy. These considerations, not without weight so far as the policy of legislation is concerned, are properly to be addressed to congress, but they cannot control the interpretation of the statute where its words are so plain and unambiguous as to exclude the consideration of extraneous circumstances. This court being without jurisdiction, the petition must be dismissed.

Counsel for the debtor ask for an assessment of damages, including costs, counsel fees, and expenses. This cannot be allowed.

1. The court having decided it was without jurisdiction, it can proceed no further in the case, except to dismiss the proceedings. Even costs cannot be allowed to the successful party, if the action is dismissed for want of jurisdiction. Mayor v. Cooper, 6 Wall. 247, 18 L.Ed. 851; Hornthall v. Keary, 9 Wall. 560, 19 L.Ed. 560; Citizens' Bank v. Cannon, 164 U.S. 319, 17 Sup.Ct. 89, 41 L.Ed. 451; Auer v. Lombard, 19 C.C.A. 72, 72 F. 209. In Citizens' Bank v. Cannon, supra, costs and attorney's fees were awarded by the trial court, although a plea to the jurisdiction had been sustained. This was held to be error, the court saying: 'Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties.' 164 U.S. 324, 17 Sup.Ct. 99, 41 L.Ed. 451. Nor does it matter that on the face of the pleadings jurisdiction exists. Blacklock v. Small, 127 U.S. 105, 8 Sup.Ct. 1096, 32 L.Ed. 70; Pentlarge v. Kirby (C.C.) 20 F. 898.

2. This is not a proper case for the allowance of counsel fees and expenses under the bankrupt act. In the absence of a statute providing for the allowance of counsel fees and expenses, it is the settled rule of the national courts that none can be allowed. Day v. Woodworth, 13 How. 370, 14 L.Ed 181; Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43; Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116; Tullock v. Mulvane, 184 U.S. 497, 22 Sup.Ct. 372, 46 L.Ed. 657. The only provision in the bankruptcy act for such an allowance is section 3e (U.S. Comp. St. 1901, p. 3423). This section is as...