Page images
PDF
EPUB

include so much as 'domicile' which requires an intention continued with residence. In re Garneau, 127 Fed. 677. It was held in this case that if it appeared that a debtor removed from one district to another for the sole purpose of being able to go through bankruptcy in the latter, he neither resided nor had his domicile in the latter. It appeared in that case that the debtor who lived in St. Louis moved to East St. Louis for the purpose of filing a petition in the latter city. The Court said that to permit a. residence to be acquired for bankruptcy purposes alone would be to open the door to grave frauds on creditors. "He was a sojourner merely, and not a resident of East St. Louis."

Principal place of business. The debtor may become a bankrupt in the district in which he has had his principal place of business for the greater portion of the last six months. The question where the principal place of business is may be involved in difficulty especially where extensive operations are carried on in different districts. Generally it would be where the business has its head, its principal office. It is a question of fact. In the case of a corporation it is presumably in the state from which it gets its charter, but though that state is the state of its residence, it may be shown that its principal place of business is elsewhere. In the case of Continental Coal Corp. v. Rozelle Bros. the corporation had its charter from the state of Wyoming, carried on extensive mining operations in Kentucky, employing about 1,000 men there, maintaining four commissaries, and selling to the public, but kept its books in Chattanooga, Tennessee, where its officers resided and the general supervision of its business conducted though it had very little property there. Held, that its principal place of business was in Kentucky.

Concurrent jurisdiction. If the residence is in one district, the domicile in another and the place of business in another, any one of these districts wou! I be a proper one for the filing of the petition. In that case aontest may arise as to which court shall take over the administration, and this is finally determined by making inquiry as to the greater convenience of the parties in interest.)

§ 803. (Bankruptcy, Sec. 13.) Ancillary jurisdiction. (Note: The main jurisdiction being in one district, ancillary proceedings may be had in other districts if the existence of assets there requires such ancillary proceedings.)

§ 804. (Bankruptcy, Sec. 14.) Extent of jurisdiction over subject matter.

(Note: The text of section 2 of the Bankruptcy Act is as follows:

Section 2. That the courts of bankruptcy as hereinbefore defined, viz.,

The district courts of the United States in the several states, The supreme court of the District of Columbia,

The district courts of the several Territories, and

The United States courts in the Indian Territory and the District of Alaska, are hereby made courts of bankruptcy, and are hereby invested, within their respective territorial limits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they are now or may be hereafter held, to

(1) Adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States, but have property within their jurisdictions, or who have been adjudged bankrupts by courts of competent jurisdiction without the United States and have property within their jurisdictions;

(2) Allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates;

(3) Appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified;

(4) Arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act, in accordance with the laws of procedure of the United States now in force, or such as may be hereafter enacted, regulating trials for the alleged violation of laws of the United States;

(5) Authorize the business of bankrupts to be conducted for

limited periods by receivers, the marshals, or trustees, if neces sary in the best interests of the estates, and allow such officers additional compensation for such services, as provided by section 48 of this Act;

(6) Bring in and substitute additional persons or parties in proceedings in bankruptcy when necessary for the complete determination of a matter in controversy;

(7) Cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided;

(8) Close estates whenever it appears that they have been fully administered, by approving the final accounts and discharging the trustees, and reopen them whenever it appears they were closed before being fully administered;

(9) Confirm or reject compositions between debtors and their creditors, and set aside compositions and reinstate the cases;

(10) Consider and confirm, modify or overrule, or return, with instructions for further proceedings, records and findings certified to them by referees;

(11) Determine all claims of bankrupts to their exemptions; (12) Discharge or refuse to discharge bankrupts and set aside discharges and reinstate the cases;

(13) Enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment;

(14) Extradite bankrupts from their respective districts to other districts;

(15) Make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act; (16) Punish persons for contempts committed before referees; (17) Pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, appoint trustees and upon complaints of creditors, remove trustees for cause upon hearings and after notices to them;

(18) Tax costs, whenever they are allowed by law, and render judgments therefor against the unsuccessful party, or the successful party for cause, or in part against each of the parties, and against estates, in proceedings in bankruptcy;

(19) Transfer cases to other courts of bankruptcy; and (20) Exercise ancillary jurisdiction over persons or property

within their respective territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceedings pending in any other court of bankruptcy.

Nothing in this section contained shall be construed to deprive a court of bankruptcy of any power it would possess were certain specific powers not herein enumerated.)

§ 805. (Bankruptcy, Sec. 15.) Jurisdiction of bankruptcy court to recover assets.

(Note: The trustee may sue in the United States District Courts to set aside voidable preferential transfers; to enforce liens; and to set aside fraudulent conveyances. Otherwise, "Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt whose estate is being administered by such trustee might have brought or prosecuted them if proceedings in bankruptcy had not been instituted unless by consent of the proposed defendant.")

§ 806. (Bankruptcy, Sec. 16.) Jurisdiction of state

(See note in last section.)

courts.

§ 807. (Bankruptcy, Sec. 17.) Summary proceedings in district court to recover property.

(Note: If property is held adversely by other persons, that is to say, is in their possession before bankruptcy, the trustee to obtain possession must maintain a plenary suit, that is, a regular judicial proceeding such as any person must institute to recover property belonging to him and adversely held by others. But if the property is in the bankrupt's possession when the bankruptcy proceedings are begun and after that time taken possession of by others, a proceeding of a summary character may be maintained in the bankruptcy court, which upon proper proofs made enters an order that the property be turned over.)

§ 808. (Bankruptcy, Sec. 18.) Appellate jurisdiction. (Note: The text of section 24 of the Act is here given:

Sec. 24. Jurisdiction of Appellate Courts.-a. The Supreme Court of the United States, the circuit court of appeals of the

United States, and the supreme courts of the Territories, in vacation in chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia.

b. The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved. Sec. 25. Appeals and Writs of Error.-a. That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals of the United States, and to the supreme court of the Territories, in the following cases, to wit,

(1) From a judgment adjudging or refusing to adjudge the defendant a bankrupt;

(2) From a judgment granting or denying a discharge; and (3) From a judgment allowing or rejecting a debt or claim of five hundred dollars or over.

Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be.

b. From any final decision of a court of appeals, allowing or rejecting a claim under this Act, an appeal may be had under such rules and within such time as may be prescribed by the Supreme Court of the United States, in the following cases and no other:

1. Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or

2. Where some Justice of the Supreme Court of the United States shall certify that in his opinion the determination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this Act throughout the United States.

« PreviousContinue »