198 U. S. Argument for Petitioners. bankrupt turned over his property, including the seed in dispute, to the receiver. And it was insisted that the proceeding was a plenary suit, to the institution of which, in the District Court sitting in bankruptcy, the petitioners as adverse parties, had consented. Certiorari was granted, and thereafter a motion to quash the writ was filed on the ground that the matters involved and determined in the cause were controversies arising in bankruptcy proceedings as distinguished from proceedings in bankruptcy, and that the remedy was by error or appeal rather than by certiorari. Consideration of this motion was postponed to the hearing on the merits. The case in the Circuit Court of Appeals is reported 125 Fed. Rep. 169. Mr. Henry S. Robbins, with whom Mr. Wallace Heckman and Mr. James G. Elsdon were on the brief, for petitioners: As to the jurisdiction of the courts below: This case in the District Court was a proceeding in bankruptcy. Bardes v. Hawarden Bank, 178 U. S. 524; In re Screen Door Co., 123 Fed. Rep. 249; and otherwise that court had no jurisdiction. The rule was the same under the act of 1867. Smith v. Mason, 14 Wall. 419; Marshall v. Knox, 16 Wall. 551; Knight v. Cheney, Fed. Cas. No. 7883; In re Marter, Fed. Cas. No. 9143; In re Ballou, Fed. Cas. No. 818; In re Bonesteel, Fed. Cas. 1627; Barstow v. Peckham, Fed. Cas. 1064; Rogers v. Winsor, Fed. Cas. No. 12,023. The fact that, after the court had overruled their objections to jurisdiction, these petitioners followed the case-as, without a sacrifice, they could not otherwise do-does not amount to a waiver of these objections. Louisville Trust Co. v. Comingor, 184 U. S. 18; Re Baudouine, 101 Fed. Rep. 574. The District Court was not without jurisdiction ab initio. It necessarily must have jurisdiction to proceed up to the point of determining that there exists an adverse claim; that is, that the property is in the possession of an adverse claimant. Louisville Trust Co. v. Comingor, 184 U. S. 18; Lathrop v. Argument for Respondents. 198 U. S. Drake, 91 U. S. 516; Mueller v. Nugent, 184 U. S. 1; In re Baird, 116 Fed. Rep. 765; In re Kane, 131 Fed. Rep. 386. The proceeding in the District Court being a proceeding in bankruptcy, the only jurisdiction which the Circuit Court of Appeals had thereof arose out of §§ 24b, 25a, of the bankruptcy act. A judgment in a proceeding by or against a lien holder, which merely establishes or rejects the lien, and does not decide whether a claim is a provable debt in bankruptcy, is not a judgment allowing or rejecting the debt or claim within sec. 25a, 3. In re Rouse, Hazard Company, 91 Fed. Rep. 96; In re Worcester County, 102 Fed. Rep. 808; In re Abraham, 93 Fed. Rep. 767; In re Whitener, 105 Fed. Rep. 180; Hutchinson v. Otis, 190 U. S. 552. It follows, then, that no appeal lay to the Circuit Court of Appeals nor can the appeal be treated as a petition for revision under § 24b. Cases supra and Stickney v. Witt, 23 Wall. 150; Cleveland Insurance Co. v. Globe Insurance Co., 98 U. S. 366. The Circuit Court of Appeals should, when this point of jurisdiction was raised, have dismissed the appeal. It should have done so even had counsel not raised the question. M. C. & L. M. Ry. Co. v. Swan, 111 U. S. 379. Hence, that court acted without jurisdiction, and certiorari is proper to correct this. American Sugar Ref. Co. v. New Orleans, 181 U. S. 277; Kingman v. Manufacturing Co., 170 U.S. 675. If the appeal were properly treated as a petition for revision, the Circuit Court of Appeals erred in not confining its action to revision in matter of law. Chesapeake Shoe Co. v. Seldner, 122 Fed. Rep. 593; Re Screen Door Co., supra. Mr. Joseph E. Paden and Mr. Newton Wyeth, with whom Mr. James H. Reed and Mr. James H. Beal were on the brief, for respondents: As to the jurisdiction of the courts below: 198 U.S. Argument for Respondents. The District Court had jurisdiction. The sale of the merchandise was by consent and this constituted a fund held subject to the order of the court and the petitioners cannot object to the jurisdiction. The case was properly heard and disposed of in the Circuit Court of Appeals, as an appeal; and in any event, the petitioners, having raised no objection to the form in which the case was heard by the Circuit Court of Appeals, cannot now question the right of that court so to hear and dispose of the case. Hewit v. Berlin Machine Works, 194 U. S. 296; Re Jacobs, 99 Fed. Rep. 539; Plymouth Cordage Co. v. Smith, 194 U. S. 311. As the Court of Appeals had jurisdiction over the subject matter, and the objection now made relates only to the form in which the power of the court should be exercised, the petitioners having made no objection to the Circuit Court of Appeals hearing and determining the case as an appeal, are now estopped from making such objection. Chesapeake Shoe Co. v. Seldner, 122 Fed. Rep. 593. If appeal is improper the same can be treated as petition for revision. Re Richards, 96 Fed. Rep. 935; Re Abraham, 93 Fed. Rep. 767; Chesapeake Shoe Co. v. Seldner, supra. Hewit v. Berlin Machine Works, 194 U. S. 296, is in point for this case. See also Jaquith v. Rowley, 188 U. S. 620. The consent necessary is to the tribunal, and not to the form of procedure. Where a party appears and maintains the bona fides of the transfer, on a full hearing, answers on the merits and the like, he will be held to have consented. In re Steurer, 104 Fed. Rep. 976; Bryan v. Bernheimer, 181 U. S. 188; Hicks v. Knost, 178 U. S. 241. Consent is not a matter of words, so much as acts. Booneville National Bank v. Blakey, 107 Fed. Rep. 891. If claimants elect to contest their rights further upon the merits in the District Court, after the assertion of jurisdiction in the court, they can consent so to do, and, under § 23b, waive all question as to jurisdiction. Mueller v. Nugent, 184 U. S. 1, and cases supra. Though all United States courts, except the Supreme Court, may be and are described as inferior courts, yet the District Courts, as courts of bankruptcy, are not inferior courts in the sense that jurisdiction must necessarily appear on the face of the record. McCormick v. Sullivant, 10 Wheat. 199; Kennedy v. Bank, 8 How. 586, 611. These respondents carried the case by appeal to the Circuit Court of Appeals and obtained a review on questions of both fact and law. It was competent for the opposite parties to consent that an appealable case should be heard in the District Court. The appeal was properly heard in the Circuit Court of Appeals. Elliott v. Toeppner, 187 U. S. 327; Duncan v. Landis, 106 Fed. Rep. 839; Booneville National Bank v. Blakey, supra. MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court. In the view we take of the case, the petition for certiorari sufficiently discloses the facts. If the proceeding in the District Court was a proceeding in bankruptcy and not an independent suit, no appeal lay to the Circuit Court of Appeals, and the jurisdiction of that court was confined to revision in matter of law "on due notice and petition" under clause b of section 24. The distinction between steps in bankruptcy proceedings proper and controversies arising out of the settlement of the estates of bankrupts is recognized in sections 23, 24 and 25 of the present act, and the provisions as to revision in matter of law and appeals were framed and must be construed in view of that distinction. Holden v. Stratton, 191 U. S. 115; Denver First National Bank v. Klug, 186 U. S. 202; Elliott v. Toeppner, 187 U. S. 327, 333, 334. This distinction existed under the prior bankruptcy law, and the then decisions in respect of a proceeding in bankruptcy and an independent suit are applicable. It was settled that the bankruptcy court was without jurisdiction to determine adverse claims to property, not in the possession of the assignee in bankruptcy, by summary proceedings, whether absolute title or only a lien was asserted. Smith v. Mason, 14 Wall. 419; Marshall v. Knox, 16 Wall. 551; In re Bonesteel, 7 Blatch. 175, Mr. Justice Nelson; Knight v. Cheney, 14 Fed. Cases, 760, Mr. Justice Clifford; In re Ballou, 4 Ben. 135, Mr. Justice Blatchford, then District Judge; In re Marter, 16 Fed. Cases, 857, Mr. Justice Brown, then District Judge. The present act was plainly framed in recognition of the principle of these cases. Subdivision 7 of section 2 confers jurisdiction on the District Courts as courts of bankruptcy to "cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided;" and we held in Bardes v. Bank, 178 U. S. 524, that this exception referred to clause b of section 23 of the act, which provides: "Suits by a trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant." And that the District Courts had no jurisdiction of such plenary suits without consent. Petitioners asserted this express statutory limitation on jurisdiction and objected that the District Court could not proceed, but their objections were overruled. That they then did not abandon their claims did not amount to a waiver of their objections or to a consent to an exercise of jurisdiction against which they protested. Louisville Trust Company v. Comingor, 184 U. S. 18. In that case, to a rule entered in the bankruptcy court, requiring an adverse claimant in possession of a fund to pay it to the trustee in bankruptcy, the claimant tendered a formal response, denying jurisdiction, which the VOL. CXCVIII-19 |