In re Appel , 103 F. 931 ( 1900 )

MUNGER, District Judge.

This is a proceeding in involuntary bankruptcy. Defendant has made a special appearance, challenging the jurisdiction of the court upon the ground tiiat he was neither a resident of, nor did business within, the district of Nebraska for the greater portion of six months preceding the commencement of this action. Certain alleged creditors of bankrupt tiled their petition in this court to have the defendant adjudged a bankrupt within the period of time which would give this court: jurisdiction. No subpoena was served upon said application. ‘Subsequently other creditors intervened, asked to be made parties, and obtained an order for service upon defendant outside of the district. The question turns upon the proposition as to whether the action or proceeding was commenced by the filing of the original petition, or whether the commencement of the proceeding is to date from the order which was served upon the defendant. A careful reading of the bankruptcy law and the adjudications thereof leads to the inevitable conclusion that for jurisdictional purposes, so far as applying periods of limitations, the action was commenced at the date of filing of the original petition. Service of the order, however, having been made upon the defendant outside of the district, it is equally clear, in my judgment, that, without an appearance upon the part of the defendant, no order can be made which will apply to the bankrupt in person. It can only proceed as a proceeding against the property of the bankrupt, if any, within the jurisdiction of the court, and which can come into the possession of the trustee. The special appearance will be overruled, and 20 days given the defendant to determine whether or not he will stand on the special appearance, or answer or plead further in the case.