259 F. 70 | 6th Cir. | 1919
The order under review is one directing a state court receiver of the estate of the present bankrupts to pay certain moneys to the trustee in bankruptcy of that estate.
On September 17, 1917, the superior court of Cincinnati, in a partnership dissolution proceeding, instituted by one of the bankrupt partners, appointed petitioner receiver. Under intervening petitions for adjudication of bankruptcy, the first filed October 5, 1917, charging as acts of bankruptcy (a) the application by the debtors, while insolvent, for a receiver of all their property,o and the appointment of such receiver because of such insolvency, and (b) a preferential payment (the original petition, filed October 4th, charging only the second act stated), the bankruptcy court on October 22d following appointed a receiver, with instructions to apply to the state court for an order directing the receiver of that court to turn over all the debt- or’s assets to the bankruptcy receiver. The state court thereupon, on October 23d, ordered its receiver to make such complete delivery, excepting $1,175 then and there awarded by the state court to the receiver for his services, counsel fees, and other expenses. On October 29th, delivery, with the exception stated, was made, and on that date the superior court, on petitioner’s application, directed its receiver to disburse the $1,175 in question; the receiver being thereupon discharged.
On the same date the bankruptcy court directed its receiver to request the superior court to set aside its orders of October 23d and October 29th. This request was complied with by the state court on November 21st, upon the ground that “the United States District Court in Bankruptcy has found that it had exclusive jurisdiction in the premises, and that this court was without jurisdiction to enter same,” and its former receiver was ordered to pay to the bankruptcy receiver the money in question. Meanwhile, on November 10th, bankruptcy adjudication was had, and on November 24th, on application of the bankruptcy receiver (apparently no trustee had then been appointed), the petitioner herein was ordered to show cause why he should not pay the money in question. After an extended hearing
The discussion in the opinion of the District Court respecting the professional conduct of certain counsel for the receiver has, in our opinion, no relation to the questions purely of law involved in the preliminary determination whether the state receiver should pay the fund to the trustee in bankruptcy, subject to later action upon the merits of the receiver’s claim. We have accordingly not considered that subject, and must not be understood as expressing any opinion upon its merits.
The order of the District Court is affirmed.
“Tlie general rule as between courts of concurrent jurisdiction is that property already in the possession of tbe receiver of one court cannot rightfully be taken from him without the court’s consent, by the receiver of another court appointed in a subsequent suit, but that rule can have only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent; Still it obtains as a rule of comity, and accordingly the receiver of the [bankruptcy court] brought his appointment to the knowledge of the [state court] and requested the delivery of the assets.”