In re Worsham

142 F. 121, 73 C.C.A. 665, 1905 U.S. App. LEXIS 4097

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 25, 1905
• Docket: No. 52
• Status: Published

Opinion

HOOK, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

This court has jurisdiction of the petition to revise. Plymouth Cordage Company v. Smith, 194 U. S. 311, 24 Sup. Ct. 725, 48 L. Ed. 992. Everyone interested in the bankrupt’s estate, including the bankrupt himself, participated in the proceedings,' and during the course thereof sought the affirmative action of the court for his benefit. The district court of Garfield county, Okl., in which the proceedings were instituted and in which they are still pending, is one of the •courts of bankruptcy established by the act of Congress. The bankrupt voluntarily appeared before the referee in that county and after the service of the first subpoena was vacated waived the issue and service of another and entered his appearance in the proceedings. There are but two creditors, one a copartnership upon whose petition the adjudication was entered and which is seeking to uphold it, and the other the creditor who now objects after an acquiescence in and recognition of the validity of the proceedings for nearly a year after the order of adjudication was made. Shortly after the latter offered his objections to the jurisdiction, and before they were heard, he voluntarily presented his claim for allowance against the estate of the bankrupt, and he still remains in the attitude of invoking the aid of that court. Under 'these circumstances we do not deem it necessary to consider and determine the merits of the various objections now made.

When a bankrupt and all of his creditors have recognized the validity and regularity of proceedings in a court of bankruptcy, have participated therein, and sought the benefit thereof, one of such creditors will not be heard long after the adjudication to object to the jurisdiction of the court upon the ground that the proceedings were instituted in a district in which the bankrupt did not reside or have his domicile or principal place of business for the greater portion of the preceding six months; nor upon the ground that a subpoena to the bankrupt was not issued, he having voluntarily waived the same and entered his appearance; nor upon the ground that the petition failed to allege that the bankrupt was not a wage earner or a person •engaged chiefly in farming or the tillage of the soil. And, for like reasons, he will not be permitted to otherwise contest the petition upon which the adjudication proceeded. In re Hintze (D. C.) 134 Fed. 141; Shutts v. Bank (D. C.) 98 Fed. 705, 709; In re Mason (D. C.) 99 Fed. 256; In re Columbia Real Estate Co. (D. C.) 101 Fed. 965; In re Ives, 113 Fed. 911, 914, 51 C. C. A. 541; In re Stern, 116 Fed. 604, 54 C. C. A. 60; In re Plymouth Cordage Co., 135 Fed. 1000, 68 C. C. A. 434.

The petition to revise is sustained, with direction to the District Court to vacate the order allowing the creditor to plead to the petition in bankruptcy.