Tripplehorn v. Cambron, 250 F. 605

Tripplehorn v. Cambron

250 F. 605 | 6th Cir. | 1918

MACK, Circuit Judge

(after stating the facts as above). [1] R In view of the single finding in the decree, and despite the opinion rendered, the decree must, in our judgment, be dealt with as dismissing the petition for want of jurisdiction, and not for want of equity.

[2] 2. It nowhere appears that the bankrupt, or his trustee in bankruptcy, or the trust company, had actual possession of the premises in question. While the bankrupt’s interest vested in his trustee as of the date of the filing of the petition in bankruptcy, the property itself does not appear to have come into his actual possession, or under the control of the bankruptcy court at any time.

[3] 3. It does affirmatively appear that three days after appellant had filed his petition, wherein he alleged that the administrator was about to begin proceedings in the state court to sell the land, such proceedings were begun, and resulted in a sale with the consent of all *607parties. Any question of jurisdiction to enjoin the sheriff’s sale thereby became moot, and, if the petition had been limited thereto, it would have been properly dismissed on this ground. •

[4] 4. By consenting to the administrator’s sale, appellant conceded that the state court had control of the property. Clearly it, and it alone, had control of the proceeds. While appellant, by his petition, had sought to require the administrator to bring the bankrupt’s entire share of those proceeds into the bankruptcy court, and to compel ap-pellee Cambrón to have the validity of her lien adjudicated in that court, we are absolved, by appellant’s subsequent submission of all the issues to the state court, without any reservation, from determining whether, in view of the fact that this petition was filed three days before the administrator’s petition to sell, the bankruptcy court thereby acquired at least a discretionary power to grant this, prayer.

Clearly, the state court.is legally competent to determine conflicting claims in respect to a fund under its control; and when such determination is dependent, as in this case, upon the construction of state statutes and decisions, it is a. proper exercise of judicial discretion, when all parties have theretofore voluntarily submitted to the jurisdiction of the state court, to decline to exercise jurisdiction and to remit them thereto. While the appellant’s answer in the state court docs not appear in the record before us, appellee Cambrou’s answer raises tlie issue of the validity and priority of her alleged lien; that, coupled with the uncontradicted allegation that all issues raised by the pleadings were submitted to that court for adjudication, sufficiently indicates the consent of all parties thereto.

We express no. opinion on the merits, because, oil this record, that question, in our judgment, is not before us.

Decree affirmed.