Stark v. Baltimore Soda Fountain Mfg. Co., Inc, 185 F.2d 398 (4th Cir. 1950)

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U.S. Court of Appeals for the Fourth Circuit - 185 F.2d 398 (4th Cir. 1950) Argued November 14, 1950
Decided November 16, 1950

Isidor Roman, Baltimore, Md., for appellant.

John O. Herrmann, Baltimore, Md. (Jacob S. New, Baltimore, Md., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


This is an appeal from a judgment dismissing a summary proceeding in bankruptcy instituted by the trustee to obtain possession of a soda fountain which had been repossessed by a claimant within four months of the filing of the petition in bankruptcy. It appeared that the claimant was in actual possession of the property prior to the bankruptcy, that possession thereof had been obtained by means of a judicial proceeding in a state court and that claimant was asserting title in good faith. For reasons adequately stated in the opinion of the court below, we think that the court was without jurisdiction to try in a summary proceeding the questions involved and that, since claimant raised the question of jurisdiction before the entry of final order of the referee, the matter of jurisdiction was not waived by claimant. See Cline v. Kaplan, 323 U.S. 97, 65 S. Ct. 155, 89 L. Ed. 97.