3 A.2d 426 | Pa. | 1938
Plaintiff began this suit by petition alleging that he was a creditor of the insolvent defendant corporation and praying that a receiver be appointed pursuant to the Act of June 4, 1901, P. L. 404,
Without answering on the merits, defendant appeared de beneesse and filed its petition under the Act of March 5, 1925, P. L. 23, 12 PS section 672, challenging jurisdiction over the cause of action on the ground that, as the petition states, "a. The Act of 1901 upon which the *11 plaintiff's petition is based is superseded in the instant case by the Federal Bankruptcy Act. b. The Federal Courts have exclusive jurisdiction over the cause of action in the instant case." A rule on plaintiff to show cause was granted pursuant to section 2 of the Act of 1925 and, after hearing, was discharged. Defendant appeals from that interlocutory order.
While the general rule is that appeals do not lie from such orders, the legislature recognized that parties wrongly brought in should not be put to the expense and inconvenience of a trial on the merits, which had resulted from the rule that such orders were unappealable, and passed the Act2 of March 5, 1925, P. L. 23, 12 PS section 672, allowing appeals from such interlocutory orders for the limited purpose of questioning, before trial, the "jurisdiction over the defendant or of the cause of action for which suit is brought": section 1.
In Main Cleaners Dyers, Inc., v. Columbia Super Cleaners,Inc., et al.,
Has the court below jurisdiction to appoint the receiver, defendant's principal place of business being in Allegheny County? As it is conceded that the court, in a proper case, may appoint a receiver (cf. McDougall v. Hunt. Broad Top Mtn.R. R. Co.,
Plaintiff relies on section 7 of the Act of 1901, P. L. 408,
"(1) . . . has exhibited a statement showing his inability to meet his liabilities, or has otherwise acknowledged his insolvency; . . . Whereupon, the court shall grant a rule to show cause why a receiver should not be appointed for the estate of such alleged insolvent, and all legal proceedings there against, if any, vacated and set aside . . ." Section 8 provides: "In such proceedings, as soon as the fact of insolvency be made to appear, the court shall forthwith appoint a disinterested person as receiver, unless the insolvent has made an assignment for the benefit of his creditors or has given security to pay petitioner's debt . . ."
Plaintiff avers that he is a creditor and that defendant is insolvent and that defendant's principal place of business is within the county.
The Insolvency Act is not inconsistent with the Bankruptcy Act merely because it authorizes appointment of a receiver in the circumstances alleged. In Lambert v. National Hog Co. etal.,
Congress made certain exceptions from what might otherwise have been an all embracing statute; within the field of those exceptions the state's power to legislate remained unimpaired as the case just cited shows. In that field the state insolvency act is in force and regulates the administration of insolvent estates until and unless the bankruptcy court on appropriate application takes over the administration of the estate. The farmer, for example, was exempted from involuntary proceedings; in any case, petitioning creditors must show that they are owed the jurisdictional minimum; the assignment for the benefit of creditors has been recognized as valid ever since the Act was passed in 1898 though, under the conditions specified in the Act, such assignment might furnish the ground for involuntary proceedings *15 in bankruptcy displacing further administration under the state law; when the amendment of 1938 (supra) dealt with "receivers or trustees appointed in proceedings not under this title," etc., the power of the state court to appoint receivers was likewise recognized, subject, as in the case of assignments, to subsequent action under the federal law. We can of course not know at this time what defendant may answer to the petition or what the trial may develop. All we now decide is that so far as now appears the court has jurisdiction of the cause of action.
Order affirmed.