The remaining question is whether, by filing proof of its $ 100,000 claim, the petitioner has consented to the exercise of summary jurisdiction by the bankruptcy court. One notes immediately that the petitioner objected to summary jurisdiction at the outset, and has not abandoned that position. It objected to summary jurisdiction in its answer to the original petition of the receiver for an order to show cause, and persisted in that objection at the hearing before the referee. When the referee found against the petitioner on this question, and ordered the turnover as sought by the trustee, the petitioning Bank filed in this court the instant petition for review of the referee's action, again objecting to jurisdiction. Not until some three months after filing this petition for review, and only a few days prior to the expiration of the period within which proofs of claim might be filed, did it file its proof of claim in these proceedings.
There is satisfactory authority for the simple proposition that the mere filing of a claim is not in itself a waiver of objections to jurisdiction or consent to the exercise of summary jurisdiction. Morton G. Thalhimer, Inc. v. Florance, 4 Cir., 1932, 58 F.2d 23; In re Bacon, 2 Cir., 1913, 210 F. 129.
Full discussion of the applicable principles is found in Inter-State National Bank of Kansas City v. Luther, 10 Cir., 1955, 221 F.2d 382. There a court, divided 3-2, found that a waiver of objections to summary jurisdiction had taken place, because the claimant had not objected to jurisdiction in the first place, and had participated in the proceedings and also filed its claim well before intimating that it had any objection to summary jurisdiction. Since two of the five judges dissented strongly even under those circumstances, it seems clear that the present petitioner's objections, raised at the very outset and urged at all opportunities thereafter, negative any suggestion of consent to summary jurisdiction.
For that matter, the entire theory of modern federal procedure is contrary to the technical waiver and consent here asserted. So long as the objection is clearly stated in the first instance, the defendant or respondent is permitted and even encouraged in all types of cases to answer to the merits, and present his defenses once he has obtained a ruling on his preliminary objections. See Rule 12(b), Federal Rules of Civil Procedure, 28 U.S.C.A. The technicalities of special appearance, for instance, are outmoded.
Although it concerned objections to jurisdiction over the person, the following language of Judge Maris seems apt. In Orange Theatre Corp. v. Rayherstz Amusement Corp., 3 Cir., 1944, 139 F.2d 871, 874, certiorari denied sub nom. Orange Theatre Corp. v. Brandt, 1944, 322 U.S. 740, 64 S. Ct. 1057, 88 L. Ed. 1573, he wrote:
'* * * A defendant need no longer appear specially to attack the court's jurisdiction over him. He is no longer required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within. He may now enter openly in full confidence that he will not thereby be giving up any keys to the courthouse door which he possessed before he came in. This, of course, is not to say that such keys must not be used promptly. * * *'
Having 'used his keys promptly' by asserting and maintaining his objections to summary jurisdiction, petitioner has preserved his rights.
It is therefore ordered that the petition for review of the Philadelphia National Bank is granted, and the order of the referee in bankruptcy directing the Philadelphia National Bank to turn over or make available the sum of $ 3,997.13 for the use of G. Potter Darrow, receiver, is hereby reversed and set aside.
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