190 F. 726 | 8th Cir. | 1911
In October, 1910, the trustee in bankruptcy of the estate of Mrs. Susan L. Ames'presented to the referee a petition in which he alleged that on April 20, 1910, three days before
There was no error in the denials of the motions of the trustee to compel the bank to answer on the merits and to grant him judgment in his favor on the pleadings nor in the order of the referee staying further proceedings because in the face of the plea to the jurisdiction, and, in the absence of any issue or investigation of the issue whether the adverse claim it set forth was substantial or colorable, and of any finding that it was colorable, the referee was without jurisdiction to proceed or to‘require any of the parties to proceed further toward the trial of the controversy between the trustee and the adverse claimant.
The litigation over the validity of the plea to the jurisdiction in this case has occupied so much time and the probability that the bank’s claim is colorable is so slight that it seems to us that the better course for the officers below to pursue in this case is to dismiss the petition of the trustee for the order to pay over the money and to let the parties litigate their controversy in a plenary suit.
The petition of the bank must therefore be granted and the order of the District Court must be so modified as to direct the reversal of the order of the referee overruling the plea to the jurisdiction and to direct the dismissal of the petition of the trustee for the order on the bank to pay over $3,424.60 on the ground that the District Court and the referee are without jurisdiction summarily to try the controversy between the trustee and the bank, and the petition of the trustee for revision must be dismissed.
It is so ordered.