120 F. 34 | E.D. Ark. | 1903
Has this court jurisdiction in bankruptcy when the party has not had his principal place of business, residence, or domicile within the district for more than three months preceding the filing of the petition in bankruptcy against him? Section 2 of the bankrupt act of 1898 [U. S. Comp. St. 1901, p. 3420] confers jurisdiction on the district court to (1) “adjudge persons bankrupt who have had their principal place of business, residence, or had their domicile within their respective territorial jurisdictions. for the preceding six months, or the greater portion thereof.” It will thus be seen that, in order to adjudicate a debtor a bankrupt, such person must have had his principal place of business, residence, or domicile within that district for the preceding six months, or the greater portion thereof. The greater portion of what? There can be but one-answer to this, — the greater portion of the six months preceding the filing of the petition. This is the conclusion reached by the United States circuit court of appeals for the Seventh circuit, in Re Plotke, 44 C. C. A. 282, 104 Fed. 964; Collier, Bankr. p. 18.
The decisions under the bankrupt act of 1867, which have been cited by learned counsel for the petitioning creditors, are wholly inapplicable to the present act. Under that act jurisdiction was granted “to- the judge of the judicial district in which such debtor has resided or carried on business for the six months next immediately preceding the time of filing such petition, or for the longest period during such six months.” Section 5014, Rev. St. This has properly been construed to invest that court -with jurisdiction in whose district the debtor has carried on business or resided for the longest period during that time, even if less than half of that period. But the present act only confers jurisdiction on the court of the district in which the
Counsel for the debtor ask for an assessment of damages, including costs, counsel fees, and expenses. This cannot be allowed.
1. The court having decided it was without jurisdiction, it can proceed no further- in the case, except to dismiss the proceedings. Even costs cannot be allowed to the successful party, if the action is dismissed for want of jurisdiction. Mayor v. Cooper, 6 Wall. 247, 18 L. Ed. 851; Hornthall v. Keary, 9 Wall. 560, 19 L. Ed. 560; Citizens’ Bank v. Cannon, 164 U. S. 319, 17 Sup. Ct. 89, 41 L. Ed. 451; Auer v. Bombard, 19 C. C. A. 72, 72 Fed. 209. In Citizens’ Bank v. Cannon, supra, costs and attorney’s fees were awarded by the trial court, although a plea to the jurisdiction had been sustained. This was held to be error, the court saying: “Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties.” 164 U. S. 324, 17 Sup. Ct. 99, 41 L. Ed. 451. Nor does it matter that on the face of the pleadings jurisdiction exists. Blacklock v. Small, 127 U. S. 105, 8 Sup. Ct. 1096, 32 L. Ed. 70; Pentlarge v. Kirby (C. C.) 20 Fed. 898.
2. This is not a proper case for the allowance of counsel fees and expenses under the bankrupt act. In the absence of a statute providing for the allowance of counsel fees and expenses, it is the settled rule of the national courts that none can be allowed. Day v. Woodworth, 13 How. 370, 14 L. Ed. 181; Oelrichs v. Spain, 15 Wall. 211, 21 L. Ed. 43; Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116 ; Tullock v. Mulvane, 184 U. S. 497, 22 Sup. Ct. 372, 46 L. Ed. 657. The only provision in the. bankruptcy act for such an allowance is section 3e [U. S. Comp. St. 1901, p. 3423]. This section is as follows :
“Whenever a petition is filed by any person for the purpose of having another :adjudicated a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or .applicant shall file in the same court a bond with at least two good and sufficient sureties who shall reside within the jurisdiction of said court, to he approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the .alleged bankrupt. If such petition be dismissed by the court or withdrawn ffiy the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking or .detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors, in such bond.”
The fact that a temporary injunction was granted by the court, restraining certain supposed debtors of the alleged bankrupt from paying any moneys in their hands belonging to the debtor over to him, does not, make it a seizure, within the meaning of the bankrupt act, as the restraining order was granted without any bond, under the general equity powers conferred on the court by section 2 of the bankrupt act [U. S. Comp. St. 1901, p. 3420]. In equity cases, when an injunction is granted without a bond, only taxable costs can be allowed. Tullock v. Mulvane, 184 U. S. 497, 512, 22 Sup. Ct. 372, 46 L. Ed. 657; Scheck v. Kelly (C. C.) 95 Fed. 941.
The proceedings will be dismissed for want of jurisdiction, without costs or damages.