acquired a lien upon the fund in the hands of the municipalities, which could only be properly secured under the statute, by a compliance with its provisions, and since this was not done, and as there was no debt due from the municipalities to the bankrupt company, its bankruptcy became, in the course of affairs, only an immaterial incident.

It is clear that the funds in the hands of the municipalities could not in any aspect have become a part of the assets of the bankrupt company until it or its trustee had impressed upon such fund a statutory lien in the bankrupt's favor, and even then such statutory lien would be subservient to the statutory liens upon the fund of the parties who furnished the materials and did the work for the bankrupt subcontracting company.

The complainant is clearly entitled to be paid out of the fund withheld by the municipalities his claim, if valid, for the materials which he furnished to and for the work done by him for the Ajax Company.

The decree below is reversed, with the direction that the municipalities be decreed to pay to the complainant out of the fund in their possession arising out of their contract with the Linde & Griffith Company such sum as shall be found duc him from the Ajax Company on his statutory lien.

For reversal: The CHIEF JUSTICE, Justices TRENCIARD, PARKER, KALISCHI, BLACK, KATZENBACH, and Judges WHITE, HEPPENHEIMER, ACKERSON, and VAN BUSKIRK.

JAMES D. ROY, COMPLAINANT-APPELLANT, V. ADOLPH ABRAHAM, DEFENDANT-RESPONDENT.*

Alabama Supreme Court, June, 1923; rehearing denied, June, 1923. EXEMPTIONS-ALLOWANCE OF EXEMPTIONS-CONCLUSIVENESS OF ORDERCREDITOR WITH NOTICE OF PROCEEDINGS TO ALLOW EXEMPTIONS CANNOT ATTACK ALLOWANCE IN ANOTHER PROCEEDING.

As a court of bankruptcy is expressly vested with jurisdiction to deter mine the claim of exemptions, a creditor holding a waive note, who was

96 So. 883.

notified of the proceedings and failed to contest the claim to exemptions, or failed to appeal from the judgment allowing the exemptions, is precluded from contesting the validity of the allowance in another proceeding in a state court.

(See Collier, 13th Ed., p. 285; Am. B. R. Digest, § 994.)

From a decree of the Circuit Court, Montgomery county, sustaining demurrer to the bill, complainant appeals. Affirmed. It is alleged that on April 17, 1913, complainant recovered judgment, in the cireuit court of Montgomery, against respondent, the basis of which was two promissory notes waiving exemptions; that said judgment was recorded in the probate office on April 22, 1913; that in April, 1919, respondent was adjudged a bankrupt, at which time he was the owner of an undivided onefourth interest in certain property in the city of Montgomery; that before his discharge in bankruptcy respondent did not schedule said property; and that afterwards, in June, 1921, respondent petitioned the bankruptcy court to be allowed to schedule such property and to exempt it to him as a homestead, which order was made by the court, and respondent is now in possession of said one-fourth interest.

Amended paragraph 5 of the bill is as follows:

"That there was no trial had or any adjudication in the bankruptcy court. of the United States in which said Adolph Abraham was adjudicated a bankrupt, by which the said one-fourth interest in said lot described in the fourth paragraph of this bill was adjudged to constitute and be an exemption to said Adolph against orator's claim and lien thereon, but said lot was only allowed and set over to him on an ex parte proceeding by said bankruptcy court without adverse proceedings against parties. And orator alleges that said Adolph Abraham is insolvent and unable to pay said judgment except by sale of said lot as owned by him."

It is prayed that the balance due on complainant's judgment be declared a lien on respondent's one-fourth interest in the property in question, and such interest be sold in satisfaction thereof.

The third ground of demurrer to the original bill read:

"The bill shows on its face that the interest of this respondent in said property has been set aside to him as a homestead under the Constitution and laws of the state of Alabama by the United States District Court for the Northern Division of the Middle District of Alabama, sitting in bank.

ruptcy, which had jurisdiction of the subject-matter, and it is not alleged that the lien of complainant attached to the homestead of this respondent."

The same objection, in varying form, is made in the demurrer to the bill as amended.

The trial court sustained demurrer to the bill as amended, and from that order or decree this appeal is taken.

W. A. Gunter and C. E. O. Timmerman, for appellant.

Stuart Mackenzie, for appellee.

ANDERSON, C. J.:

The rights of a bankrupt to exempt property are those given by the statutes of the states, and the bankruptcy court is expressly vested with the jurisdiction to determine the claim of exemptions, and if this complainant was notified of the proceedings and failed to contest the claim of exemptions, or failed to appeal from the judgment allowing said exemption he is precluded from questioning the validity of the allowance in another proceeding in the state court. Smalley v. Laugenour, 196 U. S. 93, 13 Am. B. R. 692, 25 Sup. Ct. 216, 49 L. Ed. 400. We think that the present bill falls short of charging that the order in question was void, as, for aught appearing, the complainant had notice of the proceedings to have the exemptions set apart. It may have been instituted by an ex parte petition, and there may not, therefore, have been any adverse proceeding against any particular person as charged in the amended bill; yet this complainant may have been in the bankrupt court and may have been given notice of the report of the trustee setting the exemption apart and may have had an opportunity to file exceptions to the said report. Pleading should be definite, and the nonexistence of facts which go to the life of solemn judgments of courts of records should not be evaded, and mere inferences will not suffice against an appropriate demurrer. If this complainant had notice of the proceedings, he cannot now complain of the order, notwithstanding the petition was ex parte and there was no adverse contest, and, from aught appearing from the bill of complaint, he may have been given notice and failed or refused to make the proceeding "adverse."

Upon former appeal (207 Ala. 400, 92 South. 792), this question was not decided, as the court merely assumed or conceded that the complainant had a lien on the property, overlooking the averment that the same had been set aside as exempt, and the third ground of demurrer to the original bill. Indeed, counsel for appellant doubtless realized this defect in the bill by amending the same in making a futile attempt to charge that the order setting apart the exemptions was void.

The Circuit Court did not err in sustaining the demurrer to the bill, and its decree is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.

IN THE MATTER OF ROCKFORD PRODUCE AND SALES COMPANY,

BANKRUPT.*

HARDEN V. PETRITZ.

U. S. Circuit Court of Appeals, Seventh Circuit, August, 1921; rehearing denied, October, 1921.

No. 2810.

SUITS AND ACTIONS BY AND AGAINST TRUSTEE-JURISDICTION OF BANKRUPTCY COURTS-BANKRUPTCY COURT HAS JURISDICTION OF ACTION TO RECOVER

PREFERENCE.

A bankruptcy court has jurisdiction, without consent of the proposed defendant, of suits for the recovery of a preference.

(See Collier, 13th Ed., p. 764; Am. B. R. Digest, § 655.)

SAME SUMMARY PROCEEDINGS OR PLENARY SUIT-IN GENERAL-WHAT IS A

SUMMARY PROCEEDING?

A summary proceeding ordinarily implies one begun without summons or subpoena, and is usually tried upon affidavits and upon short notice, or determined in an ex parte manner.

Where a proceeding to recover a preference, although begun by a petition and rule of court, is, from its commencement treated as a bill in equity, and is answered and tried in the same manner as a bill in equity without objection on the part of the defendant, it will be considered a plenary suit in so far as any question of jurisdiction is concerned.

(See Collier, 13th Ed., p. 769; Am. B. R. Digest, 8 647.)

275 Fed. 811.

SAME SUMMARY PROCEEDING OR PLENARY SUIT-CONSENT OF DEFENDANT TO

SUMMARY PROCEEDING.

A creditor of a bankrupt, who, upon being proceeded against in a summary manner to recover a preference, instead of objecting to the proceeding, answers, amends his pleadings, and goes to trial as on a suit in equity, will be considered as having consented to the form of the proceeding.

(See Collier, 13th Ed., p. 761; Am. B. R. Digest, § 658.)

Petition by John G. Petritz, trustee, charging preference, and from a decree on a rule to show cause, Frank B. Harden appeals. Affirmed.

Before BAKER, EVANS, and PAGE, Circuit Judges,

C. H. Linscott, for appellant.

Thomas E. Gill, for appellee.

EVAN A. EVANS, Circuit Judge:

Appellee filed a petition charging payment of various sums of money by bankrupt to appellant, as a preference, and obtained an order requiring appellant to show cause why this money should not be turned over to the trustee. Appellant answered fully, and upon his application leave was granted to file an amended answer He denied the facts constituting a preference, asserted his right to hold the money, and prayed the court to "dismiss the petition filed by the trustee in this cause, for the reason that said moneys in fact and in law belong to this respondent." A trial thereafter occurred, the testimony being heard in open court, at the conclusion of which the court found for appellee.

Two questions are presented: (a) Did the court have jurisdiction to try the cause? (b) Do the facts support the decree?

The recent decision of the Supreme Court, Weidhorn v. Levy, 253 U. S. 268, 45 Am. B. R. 493, 40 Sup. Ct. 534, 64 L. Ed. 898, has set at rest some of the questions which have apparently vexed counsel. If doubt otherwise existed as to the effect of the amendment to the Bankruptcy Act of June 25, 1910 (36 Stat. 838), it is removed by this decision. It is there said: