Ea parte Siebold, 100 U. S. 395, 25 L. ed. 726. 119 U. S. 450, 30 L. ed. 462, 7 Sup. Ct. Rep. | American soil the powers and functions that 281; Adams v. Crittenden, 133 U. S. 296, belong to it. sub nom. Adams v. Connor, 33 L. ed. 623, 10 Sup. Ct. Rep. 304; Ludeling v. Chaffe, 143 U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. 439. The bankruptcy court never got lawful possession of the property. Shields v. Coleman, 157 U. S. 168, 39 L. ed. 660, 15 Sup. Ct. Rep. 570; White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183, 20 Sup. Ct. Rep. 1007; Metcalf v. Barker, 187 U. S. 165, ante, 122, 23 Sup. Ct. Rep. 78; The E. L. Cain, 45 Fed. 367; The James Roy, 59 Fed. 784; Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019. The amendment to the bankrupt act of February 5, 1903, making a receivership an act of bankruptcy, is not retroactive so as to apply to this case. Chew Heong v. United States, 112 U. S. 536, 28 L. ed. 770, 5 Sup. Ct. Rep. 255; Endlich, Interpretation of Statutes, 276; McEwen v. Den, 24 How. 245, 16 L. ed. 673. If the amendment is not retroactive, this receivership was not an act of bankruptcy. Re Wilmington Hosiery Co. 120 Fed. 180. Solicitor General Hoyt argued the cause and filed a brief for respondents: Mr. George H. Hester by special leave argued the cause, and, with Mr. William Wilhartz, filed a brief for interested parties: All state laws for the administration of insolvents' estates, and all actions and proceedings thereunder, are suspended by the enactment of the general bankruptcy law. Re Smith, 92 Fed. 135; Tua v. Carriere, 117 U. S. 201, 29 L. ed. 855, 6 Sup. Ct. Rep. 565; Re Bruss-Ritter Co. 90 Fed. 651; Lea v. George M. West Co. 91 Fed. 237; Re Rouse, H. & Co. 33 C. C. A. 356, 63 U. S. App. 570, 91 Fed. 96; Lothrop v. Highland Foundry Co. 128 Mass. 120; Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178, 51 N. E. 529; Harbaugh v. Costello, 184 Ill. 110, 56 N. E. 363; Re Gutwillig, 90 Fed. 475. The jurisdiction of the Federal courts over the administration of insolvent estates is exclusive and supreme. Re Merchants' Ins. Co. 3 Biss. 162, Fed. Cas. No. 9,441; Re Smith, 92 Fed. 135; Harbaugh v. Costello, 184 Ill. 110, 56 N. E. 363; Watson v. Citizens' Sav. Bank, 2 Hughes, District courts of the United States have 200, Fed. Cas. No. 17,279. jurisdiction in cases of this kind. Re Merchants' Ins. Co. 3 Biss. 162, Fed. Cas. No. 9,441; Re Lady Bryan Min. Co. 6 Nat. Bankr. Reg. 252, Fed. Cas. No. 7,980; Watson v. Citizens' Sav. Bank, 2 Hughes, 200, Fed. Cas. No. 17,279; Re Gutwillig, 90 Fed. 475; Re Bruss-Ritter Co. 90 Fed. 651; Re Rouse, H. & Co. 33 C. C. A. 356, 63 U. S. App. 570, 91 Fed. 96; Lea v. George M. West Co. 91 Fed. 237; Re Smith, 92 Fed. 135; Re John A. Etheridge Furniture Co. 92 Fed. 329; Re Richard, 94 Fed. 633; Re Lengert Wagon Co. 110 Fed. 927; Re Storck Lumber Co. 114 Fed. 360; Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178, 51 N. E. 529; Harbaugh v. Costello, 184 Ill. 110, 56 N. E. 363. Although the property referred to in this case was not summarily taken from the receiver of the state court, but was voluntarily surrendered, the authority of the district court to take summary action in a proper case can hardly be questioned. Re Lengert Wagon Co. 110 Fed. 927; Clarke v. Larremore, 188 U. S. 486, ante, 555, 23 Sup. Ct. Rep. 363; Bryan v. Bernheimer, 181 U. S. 189, 45 L. ed. 815, 21 Sup. Ct. Rep. 557; Mueller v. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269. Acts similar to those committed by petitioners have been held to constitute contempt in the following cases: Re Vogel, 2 Nat. Bankr. Reg. 427; Fed. Cas. No. 16,983; Re Ulrich, 6 Ben. 483, Fed. Cas. No. 14,328; Re Litchfield, 13 Fed. 866; Ex parte Davis, 112 Fed. 139; Royal Trust Co. v. Washburn, B. & I. River R. Co. 113 Fed. 531; Anderson v. Comptois, 48 C. C. A. 1, 109 Fed. 971. The government of the United States may, by means of physical force exercised through its official agents, execute on every foot of The jurisdiction of the bankruptcy court being supreme, it may properly, by summary process, obtain possession of property in the hands of an assignee or other officer of a state court. Re John A. Etheridge Furniture Co. 92 Fed. 329; White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183, 20 Sup. Ct. Rep. 1007; Bryan v. Bernheimer, 181 U. S. 188, 45 L. ed. 814, 21 Sup. Ct. Rep. 557; Mueller v. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269; Re Tune, 115 Fed. 906; Re Green Pond R. Co. 13 Nat. Bankr. Reg. 118, Fed. Cas. No. 5,786; Re Safe Deposit & Sav. Inst. 7 Nat. Bankr. Reg. 392, Fed. Cas. No. 12,211; Re Washington Marine Ins. Co. 2 Ben. 292, Fed. Cas. No. 17,246; Re Merchants' Ins. Co. 3 Biss. 162, Fed. Cas. No. 9,441; Re National L. Ins. Co. 6 Biss. 35, Fed. Cas. No. 10,046; Re Whipple, 6 Biss. 516, Fed. Cas. No. 17,512; Re Smith, 92 Fed. 135; Clarke v. Larremore, 188 U. S. 486, ante, 555, 23 Sup. Ct. Rep. 363. to take property from the hands of a receiver Cas. No. 9,441; Re Lengert Wagon Co. 110 360; Re Bruss-Ritter Co. 90 Fed. 651; Platt The proceeding in the state court for the appointment of a receiver of M. Zier & Co. was, in substance, a voluntary assignment or bankruptcy proceeding. Every asset of the insolvent was placed by it in the hands of the receiver selected by it. The purpose was the distribution of these assets among all its creditors. Re John A. Etheridge Furniture Co. 92 Fed. 329; Re Storck Lumber Co. 114 Fed. 360. East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L. R. A. 109, 49 Fed. 608; Central Trust Co. v. Chattanooga, R. & C. R. Co. 62 Fed. 950. Where a state court has no jurisdiction over property, and loses the actual possession thereof to the Federal court, there re-ruptcy law is paramount, and the jurisdicmains no possession by the state court, either actual or constructive. The Willamette Valley, 62 Fed. 293, 13 C. C. A. 635, 29 U. S. App. 447, 66 Fed. 565; Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019. If a receiver is appointed by a Federal | porate rights;" and it was directed to comcourt, and actually takes possession of the plete unfinished contracts, but to make no property, possession will not be yielded to new ones. The winding up of the business a receiver subsequently appointed by a state was contemplated and entered upon. Whethcourt, although the suit in the state court er the transfers of $3,100 and $9,600 could was commenced before that in the Federal have been overhauled in that suit we need court. not inquire, as they were undoubtedly acts of bankruptcy, and as such justified the *ap-[27] plication to the bankruptcy court. And the operation of the bankruptcy laws of the United States cannot be defeated by insolvent commercial corporations applying to be wound up under state statutes. The banktion of the Federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. Necessarily, when like proceedings in the state courts are determined by the commencement of proceedings in bankruptcy, care has to be taken to avoid collision in respect of property in possession of the state courts. Such cases are not cases of adverse possession, or of possession in enforcement of pre-existing liens, or in aid of the bankruptcy proceedings. The general rule as between courts of concurrent jurisdiction is that property already in possession of the 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 district court brought his appointment to the knowledge of the Floyd circuit court and requested the delivery of the assets. Where there is neither actual nor constructive possession, there can be no obstacle to proceeding summarily; and an action thus taken cannot be invalidated by relation. Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019. The bankruptcy court having been given voluntary and peaceable possession, the question of comity between the courts is not involved, except as it applies to the action of the state court in retaking the property. It is a question of the supremacy of the Constitution and laws of the United States. Re Tune, 115 Fed. 906; East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co. 15 L. R. A. 109, 49 Fed. 608; Central Trust Co. v. Chattanooga, R. & C. R. Co. 62 Fed. 950. Where property is in the custody of the bankruptcy court, no other court, and no person acting under any process from any other court, can, without the permission of the bankruptcy court, interfere with it; and to so interfere is a contempt of the bankruptcy court. Re Vogel, 7 Blatchf. 18, Fed. Cas. No. 16,982; Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981, 14 Sup. Ct. Rep. 1019; Freeman v. Howe, 24 How. 450, 16 L. ed. 749. Mr. Chief Justice Fuller delivered the opinion of the court: We think there can be no reasonable doubt that the judge of the Floyd circuit court and Messrs. Watts and Sachs entertained the conviction in good faith that the custody of the state court could not be lawfully interfered with by the bankruptcy court by summary proceedings. Their view was that the jurisdiction of the state court having attached, that court was, in all circumstances, entitled to exercise it until volIn this matter writs of certiorari as well untarily surrendered. But if the state court as of habeas corpus were issued, and the rec- had taken into consideration that Zier & ord returned to us includes the evidence be- Company had committed acts of bankruptcy low, which was duly preserved by bill of ex- in the matter of preferential transfers; that ceptions. The district court held that a fla- the amendatory bankruptcy act of February grant contempt of the court in bankruptcy 5, 1903, provided that acts of bankruptcy was committed on the 20th of February by would exist if a person "being insolvent, apthe taking the property of Zier & Company out of the possession of its receiver, in whose plied for a receiver or trustee for his prophands, in the view of the court, it had been erty, or because of insolvency a receiver or voluntarily placed; and that defendants trustee has been put in charge of his prop Watts and Sachs were so connected with erty under the laws of a state, of a territory, that transaction as to subject them to like or of the United States:" and that the condemnation. tent of the bankruptcy law is to place the The New Albany Trust Company was ap-administration of affairs of insolvents expointed receiver of the property of Zier & clusively under the jurisdiction of the bankCompany under § 1245 of the Revised Stat- ruptcy courts, it appears to us that, instead utes of Indiana providing that this might of continuing the application of the Federal be done, "when a corporation has been dis- receiver for three weeks, the court should solved, or is insolvent, or is in imminent have directed the surrender of the property danger of insolvency, or has forfeited its cor- to him at ..ce, or at least after the report [28] of its own receiver on its return from In- | attorneys, they were liable to condemnation dianapolis. The state court, however, did not approve of the assurance given by its receiver at Indianapolis, and refused to allow the surrender of possession, so that the delivery to Connor by the trust company, presently made, was unauthorized by the court, whose receiver and officer the trust company was. We are not now dealing with the right of the district court to take possession in invitum, but with the voluntary delivery of property by the officer of a court, without the court's consent, and, therefore, unlawful. We say, "voluntary," for we decline to enter tain the suggestion that the district court intimidated the trust company and Watts, or that members of the bar can be intimidated in the discharge of their duty. It is true that the state court had authorized the trust company and Mr. Watts to appear at Indianapolis and explain the situation, but in doing so it was attempted to limit the operation of the order to a special appearance in the bankruptcy court, while by the order continuing the Federal receiver's application it was attempted to make him a party to the proceedings in the state court and bound by them. Obviously the state court did not wish its receiver to be bound by going before the district court, and did wish the receiver of the district court to be bound by his appearance in the state court. for giving such advice. In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment. The preservation of the independence of the bar is too vital to the due administration of justice to allow of the application of any other general rule. But here we do not have the ordinary case of advice to clients, but the case of judicial action alleged to have been induced by the advice complained of. The theory of the condemnation that of conspiracy between the state court and the attorneys to obstruct the administration of justice and to bring the authority o the United States court into contempt. We are of opinion that such charges ought never to be indulged in, and that the ultimate consequences of attacks of such a character by the courts of one government on the courts of another are too serious to allow them to be made. The state court. was a court of original general jurisdiction. On the face of its record its jurisdiction had been properly invoked, and been properly exercised, and was not open to collateral attack. Assuming[30] that the proceedings in bankruptcy superseded further proceedings in the state court, and that nothing remained for the latter but to direct the surrender of the assets and the winding up of the accounts, the district court was of opinion that it might by summary proceedings take the assets out of the possession of the state court. But Connor's possession was not acquired in that way. The contention is that the property was giv en up voluntarily by the state court receiv er, and not in obedience to any order entered on summary proceedings to which that receiver was a party. And the difficulty is that the receiver had no power to make the surrender when it was made. It was the representative of the state court. The property in its hands was property in custodia legis, and it had only such authority as was given to it by the court, and could not ex On the other hand, the district court made an order on February 17, which recited the presence of the trust company and of Watts, the voluntary offer of the trust company, with the approval of Watts, in open court, to surrender possession, and then directed Connor to present a certified copy of the order of February 11 to the trust company, and thereupon to take possession. Mr. Watts had no notice or knowledge of this order until February 23, and Sachs first saw it on that day, though he was informed of its existence February 22. [29] *The situation February 19 was this: The trust company and Watts were under rules to show cause for disregard of the orders of the state court. One had done, and the oth-ceed the limits prescribed by the court. er had advised the doing, that which the state court had not consented to, and it was after it had signified its disapproval that the district court receiver obtained possession without such consent. The state court thereupon concluded that it was entitled to restore the status quo, and accordingly it entered the orders of February 20, under which Connor was dispossessed. Without doubt the receiver agreed to give up the property in its hands to the receiver of the court in bankruptcy on the supposition that the state court would assent to its doing so. But the state court took a different view, and therefore the possession of Connor was from its standpoint a wrongful possession. In order to the adequate enforcement of This was a reassertion of the jurisdiction the provisions of the bankruptcy law, it is which the state court insisted it was entitled necessary that the powers of courts in bankto exercise, that it had not voluntarily part-ruptcy should be, as they are, most compreed with, or been lawfully deprived of. The petitioners were sentenced to impris onment for contempt because of their alleged participation in this action of the state court. hensive. Section 720 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 581) provides: "The writ of injunction shall not be granted by any court of the United States to stay proIt is the action of the state court that was ceedings in any court of a state, except in complained of, and the essence of the alleged cases where such injunction may be authorcontempt was that, assuming that actionized by any law relating to proceedings in was taken pursuant to the advice of these bankruptcy." By $ 2 of the bankruptcy act of 1898 (30 Stat. at L. 545, chap. 541, U. S. Comp. Stat. 1901, p. 3421) the bankruptcy courts are empowered to "(3) appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it ab30lutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified;" .."(13) enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment;". "(15) [31]make such orders, *issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act." The twelfth general order in bankruptcy provides: "3. Applications for an injuretion to stay proceedings of a court or officer of the United States or of a state shall be heard and decided by the judge." But no writ of injunction as such was granted in this case. The order of February 11, for the appointment of a receiver, provided that the trust company should deliver up the property to the Federal receiver, and should refrain from interfering with his possession and control of the same. That order was entered on the application of the Inland Steel Company, which had appeared in the state court at the creditors' meeting of January 24, and had interposed no objection to the order then entered for the completion of pending contracts and the running of the plant for that purpose. It was one of the contentions in support of the jurisdiction of the state court that the Inland Steel Company was thereby estopped from resorting to the bankruptcy court and obtaining the appointment of a receiver there. In Simonson v. Sinsheimer, 37 C. C. A. 337, 95 Fed. 948, it was held by the circuit court of appeals for the sixth circuit, in a careful opinion by Taft, J., that a creditor might be estopped from filing a petition in involuntary bankruptcy, in the circumstances therein detailed, and Re Curtis, 91 Fed. 737, and 36 C. C. A. 430, 94 Fed. 630, in which a different conclusion was reached, was distinguished. We express no opinion on the matter, but it should be noted, in passing, as one of the elements of controversy entering into the views of counsel in the state court. The completion of contracts by the state receiver and the procuring of materials therefor had been authorized at the creditors' meeting, in which the petitioning creditor participated, and the work had been entered upon, and it is possible that a state of facts might have existed which would involve the application of the doctrine of estoppel to some extent. We do not understand it to be contended that the passage of the bankruptcy act in [32] itself suspended the statute of Indiana *in relation to the appointment of receivers, but only that when the proceedings for such appointment took the form, as they did here, of winding up the affairs of the insolvent corporation, the proceedings in bankruptcy displaced those in the state court and terminated the jurisdiction of the latter. But the acceptance of that view does not necessarily involve the concession that these attorneys were guilty of contempt of the district court because of the action of the state court. They could not be found guilty because they believed and declared their belief that the state court had jurisdiction, and that the district court had not. Granting that they were mistaken, it does not follow that their mistaken conviction constituted contempt. In point of fact the state court agreed with them; and would certainly not have entered orders of whose validity it entertained any reasonable doubt. The distinction between the exclusive jurisdiction of the court in bankruptcy, proceeding, as it were in rem, to determine the status of a debtor and his assets, and the jurisdiction over property subjected to particu lar liens, and the like, exercised by courts of concurrent jurisdiction, was probably thought by them not to apply in the circumstances existing here, and advice based on that opinion could not in itself constitute contempt. What evidence is there that these attorneys, or either of them, gave any advice or took any action in bad faith, not in the honest discharge of their duty as counsel, but with the deliberate intent to have the Federal court set at defiance and its orders treated with contempt? When Mr. Watts returned from Indianapolis he had been disabused of his conviction that the district court would modify its order of February 11, when fully informed of the actual situation of the suit in the state court, and the participation in the proceedings therein of the creditor on whose application that order had been granted, and he appears to have earnestly sought to bring about delivery over of the property, the discharge of the trust company, and the withdrawal from the record of the petition and order of February 14. But he realized, when about to appear before the state court, *that his promise to en-[33] deavor to bring about the surrender of the property had been made under the pressure of expediency, and not by reason of change of judgment, and that he had placed himself in the embarrassing position of acting without leave and in disregard of the limitations of the order he had himself framed and procured to be entered. This led him to request Mr. Sachs to accompany him as his friend to New Albany, and assist in representing his situation in as favorable a light as possible to the state court. It is not disputed that Mr. Sachs visited New Albany solely in obedience to the dictates of friendship, and that he had no connection whatsoever with the litigation. The result was, however, and it might well have been anticipated, that it appeared to the state court that its jurisdiction had been treated cavalierly by the attorney who had represented the original complainant, who had insisted that the court retained jurisdic tion, and who could not deny that he was of the same opinion still. It was then, and on the 20th, that Mr. Sachs, without the ussent or connivance of Mr. Watts, unless suspicion be allowed to supply the want of proof, signed and verified a certain statement by the United States Tube Company, which represented that the trust company had " wrongfully, unlawfully, and without leave of this court" turned over the possession to Connor, and prayed for its removal, and the appointment of a successor. This statement is recited in the order of that date entered by the judge of the state court, disallowing the application of the trust company to resign because of its action "without leave or permission," and stating that "the judge of this court, upon his own motion and because of the open contempt of said receiver for the orders, judgment, and process of this court, does now order and direct that said receiver be and it is hereby removed from its trust." The trust company was ordered to account immediately for all the assets, and Kelso was appointed as receiver in succession by the judge upon his own motion," and directed to demand possession of the property, and in case of refusal to report to the judge for further action in the premises. This was followed by the qualification of the new receiver, the demand 184]*on Connor, the report of his refusal, the issue of the writ to the sheriff, and its execution. Mr. Sachs testified that on the 19th the Sjudge of the circuit court insisted on retaining the property and in declining to approve of the promise Mr. Watts had made; that when it was known that the property had been delivered the judge still declined to discharge Mr. Watts; that on the forenoon of the 20th the judge announced that The had made up his mind to remove the trust company and appoint another receiver; that he, Sachs, expressed the opinion that if the judge did that the better procedure would be for the new receiver to interplead in the district court, setting up all the facts from the beginning and obtaining a determination in that court; that the judge asked Kelso to bring the facts in respect of the delivery of the plant to the official knowledge of the court, when he would remove the trust company and appoint Kelso. That in the afternoon Kelso desired him to sign the statement bringing the facts to the court's notice, which he, Kelso, objected to doing, because he was to be appointed receiver, and Sachs signed it supposing the course to be followed would be an application to the district court in the nature of an interpleader; that he did not know what became of the paper, and did not know, until after the commencement of the pending proceedings, what order had been entered upon it; that The did not know that any proceedings were contemplated or in course of preparation or prepared with the view of retaking the propunty; and did not advise or assist in any such, or believe any such would be under Itaken. In seeking to extricate Mr. Watts from his anomalous position, Sachs found himself involved, by the attitude of the state court, in similar embarrassment, for the state court adhered to its views as to jurisdiction, and insisted that it had never voluntarily yielded the position it occupied, which afforded the basis for testing the question. It does not seem to have occurred to Sachs that the mere effort to get an issue which could be transmitted to the district court for determination subject to petition for review or such other appellate remedy as the bankruptcy act provided, could be regarded as con-[35] tempt of that court, and want of intention to commit contempt is entitled to great weight in such circumstances. There is some conflict of evidence as to Sachs's participation by way of suggestion in the preparation of papers on the 20th, or knowledge of the preparation of the final order and writ, but, without attempting to review the evidence and pass upon its weight, we find nothing in this conflict to justify the conclusion of an intention to contemn. State courts are entitled to the assistance of the gentlemen of the bar in the maintenance of their dignity and jurisdiction, and the fearless discharge of their duty by the latter should not be shaken by liability to punishment for mere errors of judgırent in rendering such assistance. The presumption on the verified response and plea of Sachs, which was sustained by his testimony, was that he had not been in any way a party to the dispossession of Connor, and had not advised it or expected it; that he not only had not intended any contempt, but had committed none. And as the record of the state court showed that the orders were entered by the judge of that court " upon his own motion," that presumption could not be overthrown without collaterally impeaching the record, and that we think was inadmissible. It has been already assumed that the bankruptcy proceedings operated to suspend the further administration of the insolvent's estate in the state court, but it remained for the state court to transfer the assets, settle the accounts of its receiver and close its connection with the matter. Errors, if any, committed in so doing could be rectified in due course and in the designated way. We cannot but express our regret at the unfortunate collision between the two courts, and the belief that the considerate observance of the rule of comity is adequate to avert such occurrences. We are of opinion that there was no legal evidence to sustain these convictions for contempt, and the order in each case must be,Petitioner discharged. |