In re Connolly

100 F. 620 | E.D. Pa. | 1900

McPHERSOU, District Judge.

Upon the facts of the present case it would be superfluous to examine and decide the vexed question concerning the true meaning of clause “b” of section 23. Whether or not the trustee could have sustained this petition if a prompt objection to the jurisdiction had been made, it is clear that the conduct of the respondent (who is “the proposed defendant” of clause “b”) since the petition was filed can only be explained as giving “consent” that the dispute should be determined by the court in bankruptcy. He filed an answer on the merits, gave a bond conditioned to surrender the property if the controversy should be adjudged against him, applied for and obtained from the district court an order restraining the sheriff of Philadelphia county from proceeding with the process of a state court, against the bankrupt’s property, asked for and obtained a further order from the district court directing the sheriff to hand over to him the goods under levy, and thereupon gave an additional bond in this court conditioned again for the delivery of the property if he should fail to establish his claim. Moreover, he went on with the hearings before the referee without objection to the jurisdiction, and raised the point for the first time upon exceptions to an adverse report. Such conduct.is certainly “consent”; and, while it is usually true that consent cannot give jurisdiction, this is not universally true. The rule has no application when a statute clearly implies, as does section 23, that the jurisdiction of a certain class of controversies may be given by consent, for, in such event, to apply the rule would be to make the statute of no effect.

The voluminous testimony contains numerous contradictions,, not only between witnesses, but also between different statements of the same witness. It is impossible to reconcile these contradictions, and it would be profitless to discuss them. I shall content myself with, stating my conclusions briefly:

Against tlie trustee, no partnership existed between the respondent, Jones, and Connolly at the time the petition in bankruptcy was tiled, liven if such an agreement could have been made concerning goods under levy by the sheriff, Jones had no property to put into the enter prise; for the transactions in July, resulting in bills of sale to Jones, were intended to prefer certain creditors of Connolly, including Jones himself. As Jones took part in these trans-ad ions, knowing the intention to prefer, and attempting to profit thereby, the bill of sale of July 24, 1899, was void, and (against the trustee) conveyed no title to the property.

The exceptions to the report of the referee are accordingly dismissed, and it is now decreed that the bill of sale of July 24, 1899, is null and void, and that the fund in court, being the proceeds of the property claimed alike by the trustee and by the respondent, be paid to the'trustee as an asset of the bankrupt’s estate; the costs of this reference to be paid by the respondent.