Cline v. Kaplan, 323 U.S. 97 (1944). · Go Syfert
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Cline v. Kaplan, 323 U.S. 97 (1944). Cases Citing This Book View Copy Cite
776 citation events (31 in the last 25 years) across 59 distinct courts.
Strongest positive: General Iron Industries, Inc. v. A. Finkl & Sons Co. (illappct, 1997-09-08)
Treatment trajectory · 1945 → 2026 · click a year to view as-of
1945 1985 2026
Top citers, strongest first. 39 distinct citers. How cited ↗
cited Cited as authority (rule) General Iron Industries, Inc. v. A. Finkl & Sons Co.
Ill. App. Ct. · 1997 · confidence medium
Ed. 97, 99 , 65 S. Ct. 155, 156 (1944).
cited Cited as authority (rule) General Iron Industries, Inc. v. A. Finkl & Sons Co.
Ill. App. Ct. · 1997 · confidence medium
Ed. 97, 99 , 65 S. Ct. 155, 156 (1944).
discussed Cited as authority (rule) Hadar Leasing International Co. v. D.H. Overmyer Telecasting Co. (In Re D.H. Overmyer Telecasting Co.)
N.D. Ohio · 1984 · confidence medium
As bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession, Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 [ 60 S.Ct. 628, 629 , 84 L.Ed. 876 ]; Cline v. Kaplan, 323 U.S. 97, 98-99 [ 65 S.Ct. 155, 156 , 89 L.Ed. 97 ]; May v. Henderson, 268 U.S. 111, 115-16 [ 45 S.Ct. 456, 458-59 , 69 L.Ed. 870 ], and as the proceedings in equity, Local Loan Co. v. Hunt, 292 U.S. 234, 240 [ 54 S.Ct. 695, 697 , 78 L.Ed. 1230 ]; Pepper v. Litton, 308 U.S. 295, 304 [ 60 S.Ct. 238, 244 , 84 L.Ed. 281 ], there is no Se…
discussed Cited as authority (rule) First International Services Corp. v. Apollo Sign Co. (In Re First International Services Corp.)
Bankr. D. Conn. · 1984 · confidence medium
As bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession, Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 [ 60 S.Ct. 628, 629 , 84 L.Ed. 876 (1940)]; Cline v. Kaplan, 323 U.S. 97, 98-99 [ 65 S.Ct. 155, 156 , 89 L.Ed. 97 (1944) ]; May v. Henderson, 268 U.S. 111, 115-116 [ 45 S.Ct. 456, 458-59 , 69 L.Ed. 870 (1925) ]; and as the proceedings of bankruptcy courts are inherently proceedings in equity, Local Loan Co. v. Hunt, 292 U.S. 234, 240 [ 54 S.Ct. 695, 697 , *860 78 L.Ed. 1230 (1934) ]; Pepper …
discussed Cited as authority (rule) In the Matter of Patrick C. Dinkins, Debtor. Pacific Eastern Corporation v. Patrick C. Dinkins (2×)
5th Cir. · 1980 · confidence medium
That court, after a careful consideration of the standard by which the courts have held that summary jurisdiction may be exercised in a Chapter XI proceeding found in favor of jurisdiction and affirmed the judgment of the bankruptcy judge. 11 Whenever the question of summary jurisdiction arises on a claim related to a bankruptcy proceeding, the initial inquiry is whether the property in question is in the actual or constructive possession of the debtor, and therefore of the Court. 323 U.S. 97, 98-99 , 65 S.Ct. 155, 156 , 89 L.Ed. 97, 99 (1944).
discussed Cited as authority (rule) Continental Auto Sales, Inc. v. Schroeder
E.D. Wis. · 1976 · confidence medium
Because no such determination or hearing has been fully undertaken, the case is to be remanded for the initial jurisdictional inquiry: “ ‘. . .the mere assertion of an adverse claim does not oust a court of bankruptcy of its jurisdiction. * * * It has both the power and the duty to examine a claim adverse to the bankrupt estate to the extent of ascertaining whether the *737 claim is ingenuous and substantial. * * Once it is established that the claim is not colorable nor frivolous, the claimant has the right to have the merits of his claim passed on in a plenary suit and not summarily.’ …
cited Cited as authority (rule) Phelps v. United States
SCOTUS · 1975 · confidence medium
Cline v. Kaplan, 323 U. S. 97, 99 (1944).
discussed Cited as authority (rule) In the Matter of Martin M. Decker and Kathleen H. Decker, Individually and Jointly, Debtors. Appeal of Leumi Financial Corporation
3rd Cir. · 1972 · confidence medium
Cline v. Kaplan, 323 U.S. 97, 98 [ 65 S.Ct. 155 , 89 L.Ed. 97 ] (1944); Thompson v. Magnolia Petroleum Company, 309 U.S. 478, 481 [ 60 S.Ct. 628 , 84 L.Ed. 876 ] (1940); In re American Southern Publishing Company, 426 F.2d 160, 163 (5 Cir. 1970), cert. den. sub nom.
discussed Cited as authority (rule) Walker Manufacturing Company v. Arthur Howard Bloomberg, Trustees
1st Cir. · 1962 · confidence medium
Of such a claim the bankruptcy court cannot retain further jurisdiction unless the claimant consents to its adjudication in the bankruptcy court. * * * ” Cline v. Kaplan, *693 323 U.S. 97, 98, 99 , 65 S.Ct 155 , 89 L.Ed. 97 (1944).
cited Cited as authority (rule) In re Middletown Packing Co.
D. Conn. · 1961 · confidence medium
The applicable principles of law are well established, as stated by the Supreme Court in Cline v. Kaplan, 323 U.S. 97, 98, 99 , 65 S.Ct: 155, 156, 89 L.
discussed Cited as authority (rule) Fisher v. Young
7th Cir. · 1948 · confidence medium
Consent is wanting where the claimant has throughout resisted the petition for a turnover order and where he has made formal protest against the exercise of summary jurisdiction by the bankruptcy court before that court has made a final order.” Cline v. Kaplan, 323 U.S. 97, 98, 99 , 65 S.Ct. 155 , 89 L.Ed. 97 .
discussed Cited as authority (rule) In Re Rand Mining Co.
S.D. Cal. · 1947 · confidence medium
See, In re Graessler & Reichwald, 2 Cir., 1907, 154 F. 478 , cited with approval in Taubel, etc., Co. v. Fox, 1924, 264 U.S. 426 , note 25, 44 S.Ct. 396 , 68 L.Ed. 770 ; Thompson v. Magnolia Co., 1940, 309 U.S. 478 , 60 S.Ct. 628 , 84 L.Ed. 876 ; Cline v. Kaplan, 1944, 323 U.S. 97, 98, 99 , 65 S.Ct. 155 , 89 L.Ed. 97 ; Honeyman v. Hughes, 9 Cir., 1946, 156 F.2d 27, 28, 29 .
examined Cited "see" Geron v. Peebler (In re Pali Holdings, Inc.) (3×)
Bankr. S.D.N.Y. · 2013 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944) {"Cline").
examined Cited "see" Lombard-Wall Inc. v. New York City Housing Development Corp. (In Re Lombard-Wall Inc.) (3×)
Bankr. S.D.N.Y. · 1984 · signal: see · confidence high
See, Cline v. Kaplan, 323 U.S. 97, 99 , 65 S.Ct. 155, 156 , 89 L.Ed. 97 (1944); Gluck v. Seaboard Surety Co. (In re Eastern Freight Ways), 577 F.2d 175, 183 (2d Cir.1978).
discussed Cited "see" Lake Minnewaska Mountain Houses, Inc. v. Smiley (In Re Lake Minnewaska Mountain Houses, Inc.) (2×)
S.D.N.Y. · 1984 · signal: see · confidence high
Id.; see Cline v. Kaplan, 328 U.S. 97 , 98-99, 65 S.Ct. 155, 156 , 89 L.Ed. 97 (1944). 10 The bankruptcy court concluded that the Smiley interests did not assert adverse rights of possession or title with respect to the property sufficient to defeat the court’s exercise of summary jurisdiction.
examined Cited "see" Air Transport Ass'n v. Professional Air Traffic Controllers Organization (In Re Professional Air Traffic Controllers Organization) (6×) also: Cited "see, e.g."
D.D.C. · 1982 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155, 156 , 89 L.Ed. 97 (1944); Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 , 60 S.Ct. 628, 629 , 84 L.Ed. 876 (1940); Taubel-Scott-Kitzmiller Co. v. Fox., 264 U.S. 426, 432-433 , 44 S.Ct. 396, 398-399 , 68 L.Ed. 770 (1924).
cited Cited "see" Air Transport Ass'n of America v. Professional Air Traffic Controllers Organization (In re Professional Air Traffic Controllers Organization)
D.D.C. · 1982 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 67 , 89 L.Ed. 558 (1944).
examined Cited "see" In Re the Select-A-Seat Corporation, an Arizona Corporation, Debtors. Fenix Cattle Company v. Warren M. Silver, Trustee (3×)
9th Cir. · 1980 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 98-99 , 65 S.Ct. 155, 156 , 89 L.Ed. 97 (1944); In re American National Trust, 426 F.2d 1059, 1065 (7th Cir. 1970).
examined Cited "see" Bitker v. Whyte, Hirschboeck, Minahan, Harding & Harland (3×)
7th Cir. · 1976 · signal: accord · confidence high
And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy. [Footnote omitted.] Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 , 60 S.Ct. 628, 630 , 84 L.Ed. 876 (1940); accord, Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); TaubelScott-Kixmiller Co., Inc. v. Fox, 264 U.S. 426 , 432-33, 44 S.Ct. 396 , 68 L.Ed. 770 (1924); In re American National Trust, 426 F.2d 1059, 1065 (7th Cir. 1970); In re Patrick, 194 F.2d 750, 752 (7th Cir. 1952); 2 Collier on Bankruptcy 123.04[2], at 453 (14th ed…
examined Cited "see" In The Matter Of Land Investors, Inc. (3×)
7th Cir. · 1976 · signal: accord · confidence high
(Footnote omitted.) 13 Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 , 60 S.Ct. 628, 630 , 84 L.Ed. 876 (1940); accord, Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); Taubel-Scott-Kixmiller Co., Inc. v. Fox, 264 U.S. 426 , 432-33, 44 S.Ct. 396 , 68 L.Ed. 770 (1924); In re American National Trust, 426 F.2d 1059, 1065 (7th Cir. 1970); In re Patrick, 194 F.2d 750, 752 (7th Cir. 1952); 2 Collier on Bankruptcy P 23.04(2), at 453 (14th ed. 1975). 14 Appellants Kersten and Harding do not dispute that this is the law; they urge instead that it does not apply here.
examined Cited "see" Adeline Frasch v. Thomas C. Wilson and Sally B. Wilson (3×)
9th Cir. · 1969 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 100 , 65 S.Ct. 155 , 89 L.Ed. 97 ; Henkin v. United States, 2 Cir., 229 F.2d 895, 897 . 3 .
examined Cited "see" Schmitt v. Blackwelder (3×)
2d Cir. · 1967 · signal: see · confidence high
And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 , 60 S.Ct. 628, 630 , 84 L.Ed. 876 (1940) (footnote omitted); see Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); 2 Collier, Bankruptcy, ¶ 23.04[2] (14th ed. 1966).
examined Cited "see" Schmitt v. Blackwelder (3×)
2d Cir. · 1967 · signal: see · confidence high
And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy." Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 , 60 S.Ct. 628, 630 , 84 L.Ed. 876 (1940) (footnote omitted); see Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); 2 Collier, Bankruptcy, ¶ 23.04[2] (14th ed. 1966). 10 The trustee's contention that Gold Medal had possession of the mortgaged property at the time of the filing of the petition in bankruptcy is without merit.
examined Cited "see" Pasadena Investment Company and William J. Clark v. Marguerite J. Weaver (3×)
9th Cir. · 1967 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 98-99 , 65 S.Ct. 155 , 89 L.Ed. 97 ; cf. City of Long Beach v. Metcalf, 9 Cir., 103 F.2d 483, 487 ; 2 Collier, Bankruptcy, § 23.04, 453-454 (14th ed. 1966).
examined Cited "see" David R. Cadwell v. Peter M. Elliott, Trustee (3×)
9th Cir. · 1963 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 ; Harrison v. Chamberlin, 271 U.S. 191 , 46 S.Ct. 467 , 70 L.Ed. 897 ; Eyster v. Gaff, 91 U.S. 521 , 23 L.Ed. 403 ; In re Midtown Contracting Company, 2 Cir., 243 F. 56 .
examined Cited "see" In Re Techcraft, Inc. (3×)
S.D.N.Y. · 1959 · signal: see · confidence high
See Cline v. Kaplan, 1944, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 .
examined Cited "see" John Nicholas, Trustee v. Peter Pan Snack Shop, Inc., and Lanrose, Inc. (3×)
5th Cir. · 1958 · signal: see · confidence high
See quotation supra from 11 U.S.C.A. § 11 , subdivision (7), and see also the comments on this amendment to bankruptcy procedures by House Report No. 2320 on S 2334, 82nd Congress, Second Session (1952), which referred to the Supreme Court case of Cline v. Kaplan, 1944, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 , and stated: “This holding has unsettled sound procedure and an expeditious administration in bankruptcy * * *.
examined Cited "see" In re Northern Steel Corp. (3×)
N.D. Ohio · 1954 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 ; In re Burofsky, D.C., 64 F.Supp. 128 .
examined Cited "see" Vaughan v. Petroleum Conversion Corp. (3×)
2d Cir. · 1954 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 100 , 65 S.Ct. 155 , 89 L.Ed. 97 ; Bankruptcy Act § 2, sub. a(7), 11 U.S.C.A. § 11 , sub. a(7), as amended in 1952, and § 23, süb. b, 11 U.S.C. § 46 , sub. b; F.R. 12(h); 2 Collier on Bankruptcy 1J23.08 (14th Ed. 1940) and id. 49-51 (1953 Cum.Supp.),.
examined Cited "see" First Nat. Bank in Houston, Texas v. Lake (6×)
1st Cir. · 1953 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 99 , 65 S.Ct. 155, 156 , 89 L.Ed. 97 , where the court said: 46 'Once it is established that the claim is not colorable nor frivolous, the claimant has the right to have the merits of his claim passed on in a plenary suit and not summarily.
examined Cited "see" Zamore v. Goldblatt (3×)
2d Cir. · 1952 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155 , 89 L.Ed. 97 .
examined Cited "see" Stark v. Baltimore Soda Fountain Mfg. Co., Inc (3×)
4th Cir. · 1950 · signal: see · confidence high
See Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 .
examined Cited "see, e.g." Philadelphia Entertainment & Development Partners, L.P. v. Pennsylvania Department of Revenue (In re Philadelphia Entertainment & Development Partners, L.P.) (3×)
Bankr. E.D. Pa. · 2016 · signal: see, e.g. · confidence low
See, e.g., Cline v. Kaplan, 323 U.S. 97, 98 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944) (discussing a bankruptcy court’s jurisdiction to adjudicate disputes regarding a debtor’s interest in property).
examined Cited "see, e.g." In Re Ross (3×)
Bankr. S.D.N.Y. · 1986 · signal: see, e.g. · confidence low
See, e.g., Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944).
examined Cited "see, e.g." Kransdorf v. Murray (In Re Fidelity America Financial Corp.) (3×)
Bankr. E.D. Pa. · 1982 · signal: see, e.g. · confidence low
See, e.g., Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); Thompson v. Magnolia Petroleum Co., 309 U.S. 478 , 60 S.Ct. 628 , 84 L.Ed. 876 (1940); PIC Realty Corp. v. Evans, 605 F.2d 476 (9th Cir. 1979). 7 .
examined Cited "see, e.g." Katz v. Olney Federal Savings & Loan Ass'n (In re David M. Hunt Construction Co.) (3×)
Bankr. E.D. Pa. · 1980 · signal: see also · confidence low
See also, Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); Taubel-Scott-Kitzmiller Co., Inc. v. Fox, 264 U.S. 426 , 44 S.Ct. 396 , 68 L.Ed. 770 (1924); Mueller v. Nugent, 184 U.S. 1 , 22 S.Ct. 269 , 46 L.Ed. 405 (1902); Louisville Trust Co. v. Cominger, 184 U.S. 18 , 22 S.Ct. 293 , 46 L.Ed. 413 (1902); In re Meiselman, 105 F.2d 995 (2d Cir. 1939); In re Scranton Knitting Mills, Inc., 21 F.Supp. 227 (M.D.Pa.1937). .
examined Cited "see, e.g." In Re Bush Gardens, Inc. v. United States (3×)
Bankr. D.N.J. · 1979 · signal: see also · confidence low
See also Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); Galbraith v. Valleiy, 256 U.S. 46 , 41 S.Ct. 415 , 65 L.Ed. 823 (1921).
examined Cited "see, e.g." Melville Harris, as Trustee in Bankruptcy of Leonard Massello and William Massello v. Standard Accident and Insurance Company (6×)
2d Cir. · 1961 · signal: see, e.g. · confidence low
See, e. g., Cline v. Kaplan, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 (1944); Toledo Fence & Post Co. v. Lyons, 290 F. 637, 640 (6 Cir. 1923); Seegmiller v. Day, 249 F. 177, 178-179 (7 Cir. 1918); In re Read York, Inc., 152 F.2d 313 (7 Cir. 1945); In re Berry, 247 F. 700, 704-705 (E.D.
examined Cited "see, e.g." In Re Farrell Publishing Corporation (3×)
S.D.N.Y. · 1955 · signal: compare · confidence low
Compare also Cline v. Kaplan, 1944, 323 U.S. 97 , 65 S.Ct. 155 , 89 L.Ed. 97 ; Giffin v. Vought, 2 Cir., 1949, 175 F.2d 186 ; Kleid v. Ruthbell Coal Co., 2 Cir., 1942, 131 F.2d 372 .
Retrieving the full opinion text from the archive…
CLINE, TRUSTEE IN BANKRUPTCY OF GOLD MEDAL LAUNDRIES, INC.
v.
KAPLAN Et Al.
307.
Supreme Court of the United States.
Dec 4, 1944.
323 U.S. 97
Mr. Edward Rothbart submitted for petitioner., Mr. Norman H. Nachman submitted for respondents.
Frankfurter.
Cited by 220 opinions  |  Published
Mr. Justice Frankfurter

delivered the opinion of the Court.

This case concerns the powers of a bankruptcy court when a claim adverse to the bankrupt estate is asserted.

[*98] An involuntary petition for adjudication in bankruptcy was filed against Gold Medal Laundries on September 22, 1941. A month later the adjudication was made. On December 22, petitioner, the trustee in bankruptcy, filed with the referee a petition for an order directing the respondents to turn over certain assets, allegedly belonging to the bankrupt, which had come into possession of the respondents some fifteen months prior to the institution of the bankruptcy proceedings. Respondents’ answer claimed ownership in themselves and prayed dismissal of the petition. Extensive hearings were held to determine whether the property was in the constructive possession of the bankrupt. Prior to the close of the hearings respondents orally moved that the petition be dismissed for want of summary jurisdiction and a formal motion to this effect was filed on May 19, 1942. On June 24, 1942, the referee granted this motion. The District Court reversed, whereupon the referee denied a turnover order on the merits and the District Court again reversed. Appeals from both decisions of the District Court were taken to the Circuit Court of Appeals for the Seventh Circuit. Having found that the objection to the summary jurisdiction had been timely and had not been waived, that court sustained the referee’s dismissal for lack of jurisdiction. 142 F. 2d 301. Conflicting views having been expressed in different circuits on matters affecting bankruptcy administration which ought not to be left in doubt, we granted certiorari.

A bankruptcy court has the power to adjudicate summarily rights and claims to property which is in the actual or constructive possession of the court. Thompson v. Magnolia Co., 309 U. S. 478, 481. If the property is not in the court’s possession and a third person asserts a bona fide claim adverse to the receiver or trustee in bankruptcy, he has the right to have the merits of his claim adjudicated “in suits of the ordinary character, with the rights[*99] and remedies incident thereto.” Galbraith v. Vallely, 256 U. S. 46, 50; Taubel-Scott-Kitzmiller Co. v. Fox, 264 U. S. 426. But the mere assertion of an adverse claim does not oust a court of bankruptcy of its jurisdiction. Harrison v. Chamberlin, 271 U. S. 191, 194. It has both the power and the duty to examine a claim adverse to the bankrupt estate to the extent of ascertaining whether the claim is ingenuous and substantial. Louisville Trust Co. v. Comingor, 184 U. S. 18, 25-26. Once it is established that the claim is not colorable nor frivolous, the claimant has the right to have the merits of his claim passed on in a plenary suit and not summarily. Of such a claim the bankruptcy court cannot retain further jurisdiction unless the claimant consents to its adjudication in the bankruptcy court. MacDonald v. Plymouth County Trust Co., 286 U. S. 263.

Consent to proceed summarily may be formally expressed, or the right to litigate the disputed claim by the ordinary procedure in a plenary suit, like the right to a jury trial, may be waived by failure to make timely objection. MacDonald v. Plymouth County Trust Co., supra at 266-267. Consent is wanting where the claimant has throughout resisted the petition for a turnover order and where he has made formal protest against the exercise of summary jurisdiction by the bankruptcy court before that court has made a final order. Louisville Trust Co. v. Comingor, supra. In the Comingor case although the claimant “participated in the proceedings before the referee, he had pleaded his claims in the outset, and he made his formal protest to the exercise of jurisdiction before the final order was entered.” Id. at 26. This, it was held, negatived consent and thereby the right to proceed summarily.

Thus, what a bankruptcy court may do and what it may not do when a petition for a turnover order is resisted by an adverse claimant is clear enough. But whether or not[*100] there was the necessary consent upon which its power to proceed may depend is, as is so often true in determining consent, a question depending on the facts of the particular case. And so we turn to the facts of this case.

When the trustee filed his petition for a turnover order, respondents denied any basis for such an order and asserted their adverse claim. There is no dispute about that. Before the matter went to the referee for determination, respondents explicitly raised objection to the disposition of their claim by summary procedure. They later amplified that objection by a written motion and supported it by extended argument. The established practice based on the criteria of the Comingor case was thus entirely satisfied. We reject the suggestion that respondents conferred consent by participating in the hearing on the merits. See In re West Produce Corp., 118 F. 2d 274, 277. In view of the referee’s opinion that the hearings were held to determine whether the bankrupt had constructive possession of the property, the petitioner can hardly claim the benefit of the restricted rule which he invokes. In any event, such a view is contrary to that which was decided in Louisville Trust Co. v. Comingor, supra, which held, as we have noted, that consent is not given even though claimant “participated in the proceedings” provided formal objection to summary jurisdiction is made before entry of the final order. And the Comingor case “has been repeatedly cited as determinative of the law and practice in similar cases.” Galbraith v. Vallely, 256 U. S. 46, 49.

We find no merit in other questions raised by the petitioner. But they do not call for elaboration.

Affirmed.