NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 20, 2017 * Decided December 11, 2017 Before FRANK H. EASTERBROOK, Circuit Judge DANIEL A. MANION, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 16-3916 DAVID A. BERTHA, Plaintiff-Appellant, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. v. No. 1:16-cv-04982 MICHAEL SULLIVAN, et al., Defendants-Appellees. Harry D. Leinenweber, Judge. ORDER David Bertha, a former lawyer, initiated this civil-rights action against the state judges, prosecutors, county sheriff, and court-appointed mental-health evaluator involved in his criminal cases for trespass and contempt. The district court dismissed Bertha’s suit with prejudice because of perceived deficiencies in his original complaint. We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(A)(C). * No. 16-3916 Page 2 By then, however, Bertha had filed, as a matter of course, an amended complaint that the district judge refused to consider. Because the judge did not have discretion to ignore Bertha’s amended complaint, we vacate the dismissal and remand for further proceedings. Bertha twice was arrested in October 2013 when he tried to enter the Kane County jail to visit a client after being told to leave. He was charged with trespass in separate cases. During the criminal proceedings he personally drafted and submitted motions and letters crudely berating and threatening the participating judges. He then was charged with criminal contempt. Questions about Bertha’s competence have delayed the criminal proceedings significantly, and all three cases remain ongoing in one way or another. As best we can tell, he was convicted and served an eight-month sentence for criminal contempt, but a judge vacated that conviction and ordered a series of fitness examinations and a new trial. As for the trespass cases, it appears that one of them has gone to trial and resulted in a guilty verdict, but both the sentencing in that case and further proceedings in the second trespass case were delayed when Bertha was found incompetent—a finding that since has been reversed. While these state proceedings were unfolding, Bertha turned to federal court. His original complaint named as defendants the Kane County state’s attorney and his office, an assistant prosecutor, the Kane County sheriff’s office, eight judges, and the mental-health evaluator appointed to assess Bertha’s fitness to stand trial. Bertha alleged a litany of constitutional claims under 42 U.S.C. § 1983. The district judge screened the complaint, see 28 U.S.C. § 1915(e)(2)(B); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999), and allowed Bertha to proceed. The defendants did not answer the complaint. Instead (in two groups) they filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6). The motions raised broad defenses including abstention, the Eleventh Amendment, judicial and prosecutorial immunity, the statute of limitations, and lack of personal involvement. Ten days after the first motion to dismiss was filed, and five days after the second, Bertha filed an amended complaint. See FED. R. CIV. P. 15(a)(1)(B). He tried to blunt the concerns raised in the motions to dismiss by removing the offices of the state’s attorney and sheriff as defendants, and naming all defendants in their individual capacity only. (Because of this we have amended the caption for this appeal to replace the Kane County state’s attorney’s office, which Bertha removed as a defendant, with Judge Michael Sullivan, the first named defendant in the amended complaint.) Bertha also added as defendants fifteen jail employees and other law-enforcement officers. No. 16-3916 Page 3 The amended complaint, as clarified by its attached “memorandum of law” and Bertha’s appellate briefs, see Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013); Smith v. Knox County Jail, 666 F.3d 1037, 1039 (7th Cir. 2012), sets forth the following allegations against the named defendants: (1) jail employees banned him from the Kane County jail without due process, (2) law-enforcement officers twice arrested him without probable cause for allegedly trespassing at the jail, (3) the chief judge of the Circuit Court of Kane County denied him due process by entering into evidence in his trespass cases the letters he sent the various judges, (4) the judges and prosecutors denied him due process and violated his right to free speech by bringing and entering a conviction on the charge of criminal contempt, (5) during his trials several law-enforcement officers physically assaulted and removed him from the Kane County courthouse without cause, (6) jail employees subjected him to an unreasonable strip search while he was serving his sentence for criminal contempt, and (7) jail employees subjected him to cruel and unusual punishment by placing him in segregated housing during that sentence. The amended complaint seeks damages and dismissal of the contempt case that is awaiting retrial. The district judge disregarded Bertha’s amended complaint and proceeded with a hearing on the motions to dismiss the superseded initial complaint. From the bench at that hearing, the judge dismissed the original complaint, citing judicial immunity, prosecutorial immunity, and the ongoing state-court proceedings. The judge did not say anything about the substance of the particular claims but declared that Bertha’s original complaint did not “state federal jurisdiction or causes of action.” When Bertha reminded the judge that he had filed an amended complaint, the judge said Bertha could not “file an amended complaint without leave of the Court” and, since Bertha had not sought leave, there was “nothing before the Court.” Later that day the judge entered a minute order concerning the hearing: “For the reasons stated in open court defendants’ motions to Dismiss for Failure to state a Claim . . . are granted. Plaintiff is granted leave to file a motion for leave to file an amended complaint. Civil case terminated.” Bertha responded to this minute entry by moving for leave to amend, which prompted two additional minute orders. In the first, the judge “corrected” his earlier entry to “strike the language granting Plaintiff leave to file an amended complaint” because, the judge said, “[t]here was no pending motion to file an amended complaint when the parties appeared before the Court.” In the second order, the judge denied Bertha leave to amend his complaint, saying that Bertha’s “original complaint was dismissed for lack of subject matter jurisdiction, and the dismissal was therefore with prejudice.” Bertha then filed a timely notice of appeal. No. 16-3916 Page 4 Bertha argues that the district judge erred by not addressing his amended complaint and by denying him leave to amend. The defendants frame this as a question of the district judge’s discretion to allow Bertha to amend his complaint, but that is a red herring. Bertha points out that, under Federal Rule of Civil Procedure 15, a “party may amend its pleading once as a matter of course.” Specifically, Rule 15 authorizes a party to amend an unanswered complaint within “21 days after service of a motion under Rule 12(b).” FED. R. CIV. P. 15(a)(1)(B). Bertha filed his amended complaint within that time limit, so permission from the judge was unnecessary. See id.; Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) (explaining that, because of Rule 15(a)(1)(B), “whether to allow an amendment” after an answer or motion to dismiss “was out of the court’s hands entirely”); Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007–08 (9th Cir. 2015) (describing ability to amend complaint under Rule 15(a)(1)(B) as “automatic right”). The amended complaint became the operative complaint, see Riley v. Elkhart Community Schools, 829 F.3d 886, 890 (7th Cir. 2016), cert. denied, 137 S. Ct. 1328 (2017), making the pending motions to dismiss the original complaint irrelevant, see Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (holding that district court “ruled on a mooted complaint, not the operative one” since plaintiff already had filed timely amendment under Rule 15(a)(1)(B)). We note that in Fawzy the Fourth Circuit concluded that its jurisdiction was affected by the identical procedural posture. 873 F.3d at 455. The Fourth Circuit dismissed the plaintiff’s appeal from the dismissal of his lawsuit, reasoning that there was no final judgment because the district court had not addressed the amended complaint. Id. But that analysis ignores the key to finality—did the district judge finish with the case? See Hernandez v. Dart, 814 F.3d 836, 840–41 (7th Cir. 2016) (noting that this court had jurisdiction over appeal given “multiple indicia that the district court was finished with the case”); Martinez v. City of Chicago, 499 F.3d 721, 726 (7th Cir. 2007) (same). We cannot tell from the Fawzy opinion if the Fourth Circuit disagrees with our understanding of finality or if the court simply overlooked the question. But if the Fourth Circuit meant to adopt a different standard, we reject it. Here, it is clear the district judge was finished with Bertha’s case. The judge declared that the case was “terminated,” and then he later clarified that he would not allow amendments to the complaint and that the dismissal was with prejudice. We do not lack jurisdiction just because the reasoning underlying the dismissal is wrong; rather, we must correct the error. Because the district judge had never addressed Bertha’s amended complaint, he effectively dismissed the action sua sponte, which was error. Bertha was proceeding in No. 16-3916 Page 5 forma pauperis, so the judge could have screened the amended complaint under § 1915(e)(2)(B), see Rowe, 196 F.3d at 783, and dismissed the lawsuit if that review showed the case to be frivolous. But the judge did not screen the amended complaint. Instead the judge emphasized that the case had been dismissed with prejudice on the ground that the court lacked “subject matter jurisdiction” over the superseded original complaint. And since the defendants had not moved to dismiss Bertha’s amended complaint, the judge could not dismiss sua sponte without first disclosing his intentions and giving Bertha a chance to respond. See Aljabri v. Holder, 745 F.3d 816, 819 (7th Cir. 2014); Dawson v. Newman, 419 F.3d 656, 660 (7th Cir. 2005). Here the judge did not even consider the amended complaint, much less disclose any concerns he may have had with the allegations contained in it. The district judge’s concern about subject-matter jurisdiction changes nothing. At the motions hearing, the judge did not identify a specific jurisdictional bar; he said only that “this Court has no jurisdiction to interfere in a state court matter” and that the original complaint did not “state federal jurisdiction or causes of action.” To the extent the judge was alluding to the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), he was mistaken—Younger concerns whether a district court might have reason to refrain from exercising its jurisdiction. See Sprint Comm’cns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013) (noting that abstention is exception to general rule that federal courts must hear cases “within the scope of federal jurisdiction”); Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 815 (7th Cir. 2014) (same). And if the judge’s reference to subject-matter jurisdiction instead was directed at the Eleventh Amendment defense raised by some of the defendants in response to Bertha’s original complaint, see Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994), Bertha already had eliminated that defense by amending his complaint to name only individual defendants in their individual capacity. See Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 695 (7th Cir. 2007). Thus subject-matter jurisdiction is not an obstacle. We do not mean to suggest that Bertha’s amended complaint will allow him to dodge what appear to be significant defenses. Some, like absolute judicial immunity, are obvious, and the list likely includes Younger abstention and prosecutorial immunity. But we cannot say that Bertha’s suit is frivolous, in particular some of his allegations against the law-enforcement officers working at the jail and courthouse. See Richman v. Sheahan, 512 F.3d 876, 881 (7th Cir. 2008) (noting that courthouse beating could support claim of excessive force if committed “maliciously and sadistically for the very purpose of causing harm”); Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003) (noting that strip search may support Eighth Amendment claim if “conducted in a harassing No. 16-3916 Page 6 manner intended to humiliate and inflict psychological pain”). Rather than sift through a complaint that has never been reviewed by the district judge and might be amended again with the judge’s permission, we leave it to the district judge to address Bertha’s amended complaint and any possible defenses in the first instance. We thus express no opinion about these issues. See Dawson, 419 F.3d at 660. VACATED and REMANDED.


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In Wills v. Superior Court of Orange County, a California appellate court considered the case of Linda Wills, a long-time employee of the Orange County Superior Court who suffers from bipolar disorder that subjects her to depressive and manic episodes. The court held that employers need not tolerate (or accommodate) an employee's threats or violence toward coworkers, even when that conduct stems from the employee's disability.
After about 8 years of employment with the Superior Court, she was assigned to a police department's lock-up facility where she was to assist in arraigning criminal suspects. Wills arrived at the facility, rang the buzzer for entry and, after several minutes, was admitted. Upon entering the lockup area, she "angrily swore and yelled" at the department employees, accused them of intentionally leaving her in the summer heat, and told an officer that she had added him and the facility assistant to her "Kill Bill" list. Wills disputed this version of events, denying she threatened to put anyone on a "Kill Bill" list and offering that she and the officer were joking. Both the officer and assistant felt threatened by Wills' demeanor and statement, however, and understood the "Kill Bill" comment to refer to a violent movie in which the main character created a list of people she intended to kill. The assistant reported the incident to her supervisor and asked whether she should obtain a restraining order. Other employees also viewed Wills' conduct as threatening. The police department reported the incident to the Superior Court and demanded that Wills not be assigned to its facility in the future.
Sending a coworker a ringtone, which in its audio portion directed the recipient to check her messages, growing louder and angrier and ending in a "shrieking directive" containing foul language and a reference to blowing something up.
Emailing rambling messages to several coworkers in which Wills "vented a wide array of thoughts and emotions."
Several weeks later, after the manic episode ended and Wills returned to work, the Superior Court placed her on paid administrative leave to investigate the various complaints regarding her conduct. Wills' doctor submitted a note explaining that her conduct stemmed from bipolar disorder and that Wills did not pose a danger. Nonetheless, the Superior Court terminated Wills' employment, citing various reasons including the incident at the police department and her inappropriate and threatening communications with coworkers. In response, Wills filed a charge with the Department of Fair Employment and Housing and later filed suit. Among other things, she claimed the Superior Court discriminated against her by terminating her for misconduct that stemmed from – and indeed was part and parcel of – her bipolar disorder medical condition.
The California Court of Appeal upheld the termination, rejecting Wills' claim and holding that an employer need not tolerate or accommodate an employee's disability-related threats and violence. It distinguished three decisions from the federal Ninth Circuit appeals court offered by Wills to support her position as inadequately reasoned or factually inapposite. Gambini v. Total Renal Care (employee did not engage in threats against coworkers even though they found her outbursts frightening), Dark v. Curry County (inadequately reasoned), and Humphrey v. Memorial Hospitals Association (inadequately reasoned). The court expressly limited its ruling to the facts of the case – that is, to threats and violence – and expressly reserved the question of what obligations an employer may have to accommodate other forms of disability-related misconduct. The court observed that its ruling "strikes the appropriate balance between protecting employees suffering from a disability and allowing employers to protect their employees and others from threats of violence and the fear that a hostile or potentially violent employee will act on those threats."
While this decision provides welcome guidance and latitude for employers to address threats and violence in the workplace, potential ambiguities remain. What amounts to a threat or violence against a co-worker? Must an employer accommodate outbursts that generally frighten coworkers but fall short of a threat to anyone in particular (as in Gambini), even if other employees feel threatened by the behavior? Given the pitfalls, employers should tread lightly in this area and seek counsel when considering whether to discipline employees for disability-related conduct, even if the conduct appears threatening or violent at first blush.
Another California appellate court has weighed in on perhaps the most closely watched wage-and-hour question facing California employers, again holding that employers must "provide" rest breaks and meal periods to non-exempt employees, but need not "ensure" or force employees to take them. In Flores v. Lamps Plus Inc. (the "Lamps Plus Overtime Cases"), plaintiffs sued their former employer Lamps Plus alleging a wide variety of wage and hour violations, including violation of rest break and meal period obligations. Plaintiffs asked the court to certify the claims for class treatment. The trial court refused, and its decision was upheld on appeal because the meal period and rest claims required individualized inquiries that were not amenable to class treatment.
In reaching its decision, the court assessed the nature of an employer's obligations regarding meal periods and rest breaks, since those obligations informed the type of proof needed to establish a violation. Looking at the plain language of the applicable statutes, wage order and regulations, the court concluded that an employer's mandate is to "provide" or "authorize or permit" employees to take, and to not force employees to work through, meal periods and breaks. According to the court, "[t]he notion that an employers must ensure all employees take their meal and rest periods is utterly impractical," placing an "undue burden on employers whose employees are numerous or who . . . do not appear to remain in contact with the employer during the day."
Where an employer is required to "provide" meal periods and rest breaks, but not to "ensure" they are taken, plaintiffs seeking class certification may try to show a company policy and practice of depriving employees of meal periods and rest breaks. In the Lamps Plus Overtime Litigation, Plaintiffs could not do so and certification was denied. Lamps Plus established that it notified employees of their right to meal periods and rest breaks, obtained assurance from employees they would comply with the law, and disciplined employees for failing to do so. Plaintiffs' proffered evidence to the contrary merely reflected divergent experiences among the potential class members and representatives, rather than a company-wide policy or practice of depriving employees of meal periods and rest breaks. Because resolution of whether Lamps Plus violated its meal period and rest break obligations required an inquiry into each employee's experience, not amenable to class-wide proof, Plaintiffs' certification request was denied.
With several California appellate courts in the last four years reaching similar conclusions that employers must only "provide" rest breaks and meal periods (see Brinker Restaurant v. S.C., Brinkley v. Public Storage, Hernandez v. Chipotle Mexican Grill, Inc., and Faulkenbury v. Boyd & Associates, all pending before the California Supreme Court; and Tien v. Tenet Healthcare Corporation, review requested) and numerous federal courts agreeing, this decision is a welcome showing of continued support for a common-sense and practical approach to the meal period and rest break obligation debate. We continue to await the final word, however, from the California Supreme Court in the Brinker cases.
On April 20, 2011, the National Labor Relations Board ("NLRB") issued a complaint against Boeing, alleging it improperly transferred work from its unionized facility in Washington to a new, non-union facility in South Carolina in retaliation for union activity at the Washington facility. The NLRB further alleges Boeing made coercive statements to employees regarding strikes and other union activities, and seeks an order forcing Boeing to complete the work intended for the new South Carolina facility in Washington. Boeing denies the charge and, in a 10-page letter to the NLRB, contends no existing work in Washington was transferred to North Carolina and no union employees in Washington lost jobs, and asserts that the NLRB, through misquotations and mischaracterizations, has done "a grave disservice" to Boeing and its executives, shareholders, and employees. The NLRB recently responded in a short letter and released a public statement indicating "[t]here is nothing remarkable or unprecedented about the complaint" that was issued after the NLRB's thorough investigation, careful review, and invitation to the parties to present their cases and discuss possible resolution. The complaint is set for hearing on June 14.
Until then, it is likely the claims will continue to be the subject of much – and very public – discussion, but not just between Boeing and the NLRB. A simple online search for the terms "Boeing" and "NLRB" reveals numerous state governments, businesses, unions, and politicians reeling over the complaint and subsequent commentary. Some, including the International Association of Machinists and Aerospace Workers that originally complained about Boeing's practices, have touted the importance of the complaint and fighting alleged union-busting tactics. Others do not agree. For instance, the Attorneys General for eight states have asked the NLRB to withdraw the complaint, calling it an "assault" on an employee's right to work. The Committee on Education and the Workforce for the U.S. House of Representatives appears to have taken interest in the complaint, having commenced an inquiry into the NLRB's actions and requested information about the allegations that Boeing transferred work to South Carolina where, apparently, no unionized employees lost jobs or suffered financially due to Boeing's establishment of the new facility.
In Zeinali v. Raytheon Company, plaintiff Hossein Zeinali alleged that his former employer, Raytheon Company, unlawfully discriminated against him based on his race and national origin when it allegedly fired him for failing to obtain a "Secret" level security clearance. Raytheon hired Zeinali as an engineer in 2002, but continued employment was condition upon him obtaining "Secret" clearance. In 2006, after four years of employment, Zeinali's clearance was denied; Raytheon fired him, citing several reasons with the clearance denial as the primary one. In his lawsuit, Zeinali claimed Raytheon retained two non-Iranian engineers who lacked security clearance while he, an Iranian, was fired. The California Court of Appeal found that this evidence called into question both whether the security clearance was a bona fide requirement and whether Raytheon's main reason for terminating him was pretextual, and allowed Zeinali to proceed to trial on his claims.
A Washington appellate court has allowed a former Macy's employee to proceed to trial on the issue of whether she opted out of Macy's arbitration program. In Neuson v. Macy's Department Stores Inc., Anjelia Neuson alleged Macy's discriminated and retaliated against her and wrongfully terminated her employment after she returned to work from her medical leave stemming from a workplace injury. Macy's moved to compel arbitration of Neuson's claims, citing its four-step resolution process, Solutions InSTORE, that culminated in binding arbitration. While the appellate court found the Solutions InSTORE program enforceable, it concluded that Neuson raised a triable question of fact regarding whether she had opted out of the program. Neuson claimed she signed a document refusing arbitration and denied receiving or completing any further forms after her break in service and transfer. The court noted that the issue was complicated by Macy's use of an electronic signature to confirm receipt of information without evidence that only Neuson had access to such signature.
What you say in the workplace can land you in hot water outside the office, so an employee of Lucasfilm Entertainment Company Ltd. has learned. In early April 2010, the federal district court in Northern California denied Donald Bies' motion to dismiss a lawsuit against him filed by his former coworker, Tabitha Totah. Totah alleges that Bies defamed her to supervisors through, among other things, statements about her alleged sexual promiscuity and unprofessional conduct, and then defrauded her by denying he had made such statements. She further alleges she learned the truth – that Bies had lied to her – through his sworn deposition testimony, which he provided in Totah's prior lawsuit against Lucasfilm. In addition to defamation and fraud, Totah seeks damages for intentional infliction of emotional distress.

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INFORMATION UNDER D. LGS. 196/2003 Dear Customer, We inform you that, pursuant to art. 13 of Legislative Decree no. 196/2003, ORUM OCCHIALI will process the data you provide in accordance with regulations regarding the protection of personal data. The provision of data is required and therefore a refusal to supply such determines the inability to perform the online service. Please also be advised that the personal information you provide is collected by electronic means and treated, even with the help of electronic means, directly and / or through third party representatives (companies for home delivery, for mailing, and data entry) and may be used, subject to your need and explicit consent, for purposes connected to the following activities: execution of the service and the management of the purchase of the products; statistics, the dispatch of advertising material, including through the use of electronic mail. The provision of data for these purposes is optional: your refusal will make it impossible for ORUM OCCHIALI to follow up on its activities. In any case, your data will not be disclosed (if not to companies for home delivery, for mailing and data entry) or sold to third parties. Within ORUM OCCHIALI the data may be known only by those specifically working with the Manager of E-commerce, Information Technology, Marketing, Sales, Administrative offices. Under Article. 7 of Legislative Decree no. 196/2003, you have the right to request information from the data processor at any time regarding the processing of your data, the methods and aims and logic applied to it: 1) confirmation of the data, their communication and their origin; 2) the identification of the owner and managers, and the person or persons to whom the data may be communicated or who might learn about them as managers or directors; 3) the updating, rectification, and integration of data; 4) the cancellation, anonymous transformation, or blocking of data in violation of law; 5) confirmation that the operations referred to in points 3) and 4) have been brought to the attention of those to whom the data were communicated and disseminated, with the exception of cases where this proves impossible or involves a use of means clearly disproportionate to the protected right; 6) to oppose: the processing of data pertinent to the purpose of collection for legitimate reasons; the processing of data for purposes of commercial information or for carrying out market research. To exercise your rights under art. 7 of Legislative Decree no. 196/2003, write to The data controller ORUM OCCHIALI with registered office and headquarters in Via San Gallo No. 126 / R, Florence, Italy. Attention: Responsible for processing of personal data.
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13.1 The present Conditions of Sale are made up of all of the terms that compose them.
13.2 If one or more provisions of these Conditions of Sale are deemed invalid or declared as such by law or following a decision by a body having jurisdiction, the other provisions remain in full force and effect.
14.1 All contractual relationships between the parties and the general conditions of contracts are governed by Italian law.
14.2 For any and all disputes that may arise regarding the application, interpretation, and execution of these general conditions of sale, the court of the place of residence or domicile of choice of the Consumer will be competent.
15.1 This agreement repeals and replaces any agreement, understanding, negotiation, written or oral.


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Law Web: Whether respondent in writ petition while supporting order passed in his favour can challenge findings recorded against him?
Whether respondent in writ petition while supporting order passed in his favour can challenge findings recorded against him?
So far as the first point is concerned, Order 41, rule 22 of the Code of Civil Procedure confers two distinct rights on the respondent in an appeal. The first is the right of upholding the decree of the Court of the first instance on any grounds, including the grounds on which the Court held against him, without filing any cross-objection.
We are quite satisfied that on general principles a party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below.
In fact the Supreme Court in the following cases reiterated the proposition that the respondent in appeal can support the judgment in his favour even on grounds which were negatived in the judgment.
We see no force in this submission of Shri Deopujari inasmuch as there are no rules which prohibit the respondent in a writ jurisdiction to exercise powers analogous to those conferred by Order 41, Rule 22 of the Code of Civil Procedure. In Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal Rajasthan, Jaipur MANU/SC/0221/1967 : A I R 1967 S C 1182 the respondents were entitled to support the decision of the Tribunal even on the grounds which were not accepted by the Tribunal or any other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record.
21. With reference to the first point, therefore, we observe that the respondent in a writ petition would be entitled to support the order passed by the Rent Controller even on findings which are pronounced against him.
B.C. Gadgil and M.R. Waikar, JJ.
2. The dispute related to two godowns and one shop which were in occupation of tenant Vithaldas,--petitioner No. 1. One godown belonged to Mansukhlal, the other godown belonged to Ramniklal and the shop belonged to Ratilal who were all real brothers. These three brothers initiated three separate rent control proceedings against tenant Vithaldas for eviction on several grounds under clause 13 (3) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter called the Rent Control Order). These three Rent Control proceedings were clubbed together by the Rent Controller as they were directed against a common tenant by the 3 landlords, who were brothers.
3. The Rent Controller granted permission on all the counts on which permission was sought against Vithaldas, but dismissed the applications holding that the tenancy itself was void.
4. Both the parties in all the three Rent Control proceedings, therefore, preferred separate appeals challenging the orders that were adverse to them. A set of these appeals so preferred was dealt with by the Resident Deputy Collector in two groups. He disposed of a group of four appeals (that is, two preferred by the landlords and two by the tenant) relating to two godowns by one common judgment and a group of two appeals, (one by the landlords and the other by the tenant) relating to the shop by another common judgment.
5. The Resident Deputy Collector granted permission to the landlords in respect of one godown and the shop on the ground of sub-letting, a ground contemplated under clause 13 (3) (iii) of the Rent Control Order. In respect of both the godowns permission was also granted by him on the ground that the tenant had secured an alternative accommodation, a ground contemplated by clause 13 (3) (v) of the Rent Control Order.
6. Feeling aggrieved by this order, the tenant Vithaldas preferred three separated Special Civil Applications under Article 227 of the Constitution of India, which came to be heard by the learned Single Judge.
7. The learned Single Judge set aside the finding of the Resident Deputy Collector that the premises were sub-let, as alleged. The learned counsel for the respondents (landlords) in She 3 petitions wanted to support the ultimate permission that had been granted by the Rent Control authorities even on the grounds which were held against them, even though they did not challenge the rejection of their application with respect to those grounds, either in appeal or by way of a writ petition. This, according to the learned Single Judge, is not permissible. In his opinion each ground was based on different set of facts and each had a different cause of action independent of the other. He observed that a landlord can combine all such claims in one application before the Rent Controller, or they could have been made subject matter of different applications as well. It was further observed that the consequences of different grounds are also different and rights either of a landlord or of a tenant under different grounds are also different. The learned Single Judge found that he was unable to agree with the observations made by a Division Bench decision of this Court in-- Fakruddin v. M/s. Hindusthan Stores Ltd., Akola Special Civil Application No. 388 of 1960. decided on 1st September 1961 by Kotval and Shikhare JJ. upon which reliance was placed by the learned counsel for the respondents. The said decision in the opinion of the learned Single Judge requires reconsideration by a larger Bench. This is the first point on which reference had been made.
8. The second point of reference is in relation to clause 13 (3) (v) with Explanation appended thereto of the Rent Control Order. The decision of the Single Judge of this Court in Radhabai v. Resident Deputy Collector Special Civil Application No. 791 of 1964 decided on 7th February 1966 on which reliance was again placed by the learned counsel for the respondents in the opinion of the learned Single Judge, lays down a wide proposition which again needed re-consideration by a larger Bench.
Explanation--For the purpose of this item the tenant shall be deemed to have secured an alternative accommodation if he owns a residential house in the city or town concerned and if such house is constructed on a site lying vacant on 1st January 1951 or on an site made vacant on or after that date by demolition of any structure standing on such site; or...".
10. In the instant case petitioner No. 1 had purchased a house in the town in or about the year 1962, a part of which was being used by him for his residential purpose and a part as a godown for storing gunny bags in which he deals. The contention of the tenant was that he had an expanding business for which he was required to hire an additional godown in addition to the two godowns in question. The premises in question were used for non-residential purposes and hence the Explanation to clause 13 (3) (v) of the Rent Control Order, as the learned Judge rightly observed, had no application, which relates only to a residential house. The observations of the learned Single Judge in Radhabai's case (cit. supra) that since the house has been acquired by the tenant it must be taken that he had taken an alternative accommodation within the meaning of clause 13 (3) (v) of the Rent Control Order, in the opinion of the learned referring Judge, is too wide a proposition and needs reconsideration. In his opinion the alternative accommodation contemplated by clause 13 (3) (v) would be an accommodation which a tenant had acquired in place of one which he was already having. He further observed that if the tenant needs the present accommodation in question and also needs the additional accommodation available to him and both are meant for being utilised, then it cannot be said that he has secured alternative accommodation. We do feel that the observations made by the learned Single Judge in Radhabai's case are too widely made.
11. The word "alternative" means offering a choice of two or more things and if one is chosen the other is rejected. The word connotes a necessity for deciding between two courses or propositions either of which may be chosen, but not both. The two contrasted or paired courses or things may or may not be identical, or exactly similar, or as convenient as the other. The accommodation that is pointed out as a substitute or as an alternative accommodation may have some plus or minus points, some merits or demerits as compared to the one in question in the occupation of the tenant and even so it could be termed as an alternative accommodation as the word "alternative" does not connote two exactly identical things, situations or courses.
13(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence".
Thus under the Bombay Rent Act the emphasis is on the word "suitable" with reference, of course, to the alternative accommodation in question. In the Rent Control Order "alternative" is the only word used in clause 13(3)(v), but to say that the tenant would not be entitled to contend anything as to the suitability or otherwise of the alleged alternative accommodation would be to defeat the very purpose of this clause and the intent on of the Legislature. If the tenant after expansion of the size of his family acquires some additional accommodation for his married sons or school going children of his family, tenant would not be precluded from pointing out that the additional accommodation though secured by him cannot truly be considered as a substitute for the one in question or as an alternative accommodation. In order, therefore, to decide whether new or additional accommodation secured by the tenant can be looked upon as an alternative accommodation, the Court ought to decide the needs and difficulties of the tenant with reference to the other accommodation that is acquired by him. He can also consider whether grounds put forth by the tenant are reasonable, real and bona fide. The observations to be found in Radhabai's case to the effect that as soon as the landlord establishes that the tenant has secured an alternative accommodation he is entitled to terminate the tenancy is too wide and broad a proposition. A tenant would not be precluded from pointing out whether such an accommodation can really be termed as an "alternative" accommodation where he should be obliged to shift in substitution of the tenanted premises. An improper or unsuitable accommodation certainly cannot be called an alternative accommodation and in this view of the matter the element of suitability, convenience or otherwise is ingrained in the term "alternative". Therefore, whether an accommodation is really an alternative accommodation or not would always depend upon the facts and circumstances of a case.
13. So far as the first point is concerned, Order 41, rule 22 of the Code of Civil Procedure confers two distinct rights on the respondent in an appeal. The first is the right of upholding the decree of the Court of the first instance on any grounds, including the grounds on which the Court held against him, without filing any cross-objection. This right, of course, does not confer on him a right higher than that he would have had if he had preferred an appeal against the ground decided against him. See The Management of Itakhoolie Tea Estate v. Its Workmen MANU/SC/0330/1960 : AIR 1960 S C 1349.
14. The second right is that of taking cross-objection to the decree which he would have taken by way of an appeal. In this first case he supports the decree while in the other case he attacks the decree. In other words, he attacks the decree in respect of reliefs not granted to him by the Courts below. The driving wedge between the two rights in our opinion, is the extent or totality of the reliefs that are claimed by him and what was ultimately granted to him and not whether the cause of action is independent of the same. If a decree is partly in favour and partly against the respondent and if he does not prefer either an independent appeal or a cross-objection so far as that part of the decree which is against him is concerned, then certainly he cannot challenge that part, obviously because he would not merely be supporting the decree which is in his favour but would be attacking that part by which he is aggrieved and thus widen the area of the relief that was finally granted by the Court of first instance. The illustration given by the learned referring Judge in his referring order precisely relates to such a case, namely, where a suit is filed on four independent pronotes and claim under two is decreed and under two dismissed, then the plaintiff as a respondent in the appeal filed by the defendant cannot say that the decree on the basis of the other two pronotes also should have been decreed, without filing any cross-objection simply under the guise of supporting the decree inasmuch as he is not merely supporting that part of the decree that he has already secured, but he is attacking the decree that is against him.
15. Thus in upholding or supporting the decree the respondent only endeavours to reinforce the relief that is already granted on whatever grounds possible, including those grounds on which the Court has held against him. His right is limited only for canvassing the correctness of the findings against him in order to support the ultimate judgment that has been passed against the appellant. The right as observed above does not confer any higher right, that is, he certainly cannot seek any enlargement of the relief that is granted to him. In other words, he cannot be Permitted to fight out a battle that he has lost or reopen the chapter that is closed without having filed an independent appeal or a cross-objection which he could do. Therefore when a landlord seeks permission, as in the instant case, for determination of the lease on more grounds than one and if permission is granted to him on one ground, negativing, however the other grounds, the order is wholly in favour of the landlord so far as the ultimate relief which he prayed for is concerned and he could not have appealed against the adverse findings simply by way of criticism of the judgment.
But the clause (clause 21) to which we have referred does not say that any person aggrieved may appeal to the Deputy Commissioner. It says that any person aggrieved by an order of the Controller may prefer an appeal. When the order was in favour of the landlords they were not aggrieved by the order. To borrow the language of their Lordships of the Privy Council in Iswarayya v. Iswarayya MANU/PR/0106/1931 : 58 Ind. App. 350 at P. 361 = A I R 1931 P C 234 at P. 239 (C), there was no reason why the landlords should appeal from the order which the Rent Controller had made; there was every reason why they should be satisfied therewith.
A right of appeal is conferred to get an order set aside or out of the way. Even if a person has a grievance against a finding he cannot come by way of appeal unless he challenges the order itself and wants to get it interfered with. Unless we hold this way, even if the order is entirely in favour of a party he would be required to file an appeal against a finding if the other side were to appeal against the order as it is. In our opinion, the landlords here had every reason to be satisfied with the order, and they need not have appealed.
The question is whether they were entitled to set up an argument before the Additional Deputy Commissioner that the order passed by the Rent Controller was erroneous on the first two grounds which they had urged before him. In our opinion, they were. The learned counsel for the petitioners sought the analogy of Order 41, Rule 22 of the Code of Civil Procedure and wanted to apply it on the strength of section 141 of the Code. In our opinion, without having to decide whether Order 41, Rule 22 of the Code of Civil Procedure applies or not to rent control proceedings and appeals arising therefrom, we are quite satisfied that on general principles a party who has an order in its favour is entitled to show that the order is justified on some ground which was decided against it in the Court below.
Thus this decision, in our opinion, is on all fours so far as the point in reference is concerned.
17. This decision of the Madhya Pradesh High Court has also been relied upon by the High Court of Andhra Pradesh in Bhagavatula v. M. Ananclam Chatti MANU/AP/0116/1972 : A I R 1972 A P 66.
19-A. It is no doubt true that the respondents cannot be allowed to impugn the decree passed by the High Court in favour of the appellants as they did not file any appeal from that decree. But we think that there is no reason why they should not be allowed to urge the plea that the orders of sanction were invalid when the appellants want not only to maintain the decree passed by the High Court but also to get a decree charging the entire properties. In other words, the bar against urging the plea of the invalidity of the orders of sanction would apply only if the respondents seek to impugn the decree already obtained by the appellants but not when the appellants seek to obtain further reliefs in the appeal on the basis of the orders. In such a case we are not aware of any rule of law which would preclude the respondents from urging the plea.
Thus though the respondents were not permitted to impugn or mutilate the decree that was passed against them, they were permitted to contend that the decree as passed was proper and it did not call for any enlargement of the reliefs as claimed by the plaintiff.
19. Shri Deopujari, the learned counsel for the petitioner, submitted that the respondent in a writ petition would not be permitted to invoke the provisions of Order 41, rule 22 of the Code of Civil Procedure.
20. We see no force in this submission of Shri Deopujari inasmuch as there are no rules which prohibit the respondent in a writ jurisdiction to exercise powers analogous to those conferred by Order 41, Rule 22 of the Code of Civil Procedure. In Management of the Northern Railway Co-operative Credit Society Ltd., Jodhpur v. Industrial Tribunal Rajasthan, Jaipur MANU/SC/0221/1967 : A I R 1967 S C 1182 the respondents were entitled to support the decision of the Tribunal even on the grounds which were not accepted by the Tribunal or any other grounds which may not have been taken notice of by the Tribunal while they were patent on the face of the record.
21. With reference to the first point, therefore, we observe that the respondent in a writ petition would be entitled to support the order passed by the Rent Controller even on findings which are pronounced against him. The matter be now placed before the learned Single Judge. Costs of the reference will be costs in the cause.

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[236 U.S. 288, 289] Messrs. D. H. Hughes, Alexander Gilchrist, C. K. Wheeler, and J. G. Wheeler for appellants.
[236 U.S. 288, 290] Messrs. W. F. Bradshaw, Jr., and j. D. Mocquot for appelled in Nos. 99, 100, and 101, and for petitioners in No. 292.
These are appeals from a decree of the United States circuit court of appeals for the sixth circuit, involving the distribution of a fund in the hands of a trustee in bankruptcy. The cases are reported in the circuit court of appeals in 113 C. C. A. 627, 193 Fed. 841 and 119 C. C. A. 363, 201 Fed. 31.
One Thomas J. Atkins, upon a petition in involuntary bankruptcy, was, on the 28th day of December, 1908, in the United States district court for the western district of Kentucky, duly adjudicated a bankrupt. On the 3d day of December, 1906, the bankrupt conveyed certain parcels of real estate to his son, Edward L. Atkins. and to the children of said Edward L. Atkins. At the time of the conveyance, the bankrupt was indebted to the Globe Bank & Trust Company of Paducah, Kentucky, the First National Bank of Paducah, Kentucky, and the Old State National Bank of Evansville, Indiana. He also became indebted, subsequently to the delivery of said deed, to certain other creditors in considerable sums. On August 25th, 1908, the Globe Bank & Trust Company instituted a suit in the [236 U.S. 288, 293] McCracken circuit court of Kentucky, against Atkins and the vendees of said deed, asking a judgment for the amount of the debt, and seeking to set aside the deed of conveyance as fraudulent and void, causing at the same time a writ of attachment to issue, which writ of attachment was levied upon the real estate described in the deed. Similar actions were begun by the First National Bank of Paducah, and the Old State National Bank of Evansville, asking the same relief, and in each of said actions attachments were issued and levied upon the same property. These suits were begun and the attachments issued within four months of the filing of the petition in bankruptcy. Arthur Y. Martin was duly elected trustee in bankruptcy. On January 9th, 1909, the Globe Bank & Trust Company filed its petition contesting the jurisdiction of the bankruptcy court, and its right to interfere with the proceedings in the state court for the recovery of the property as aforesaid. On January 20th, 1909, the Globe Bank & Trust Company filed a second petition, praying that the attachment lien be preserved under 67f of the bankruptcy act [30 Stat. at L. 565, chap. 541, Comp. Stat. 1913, 9651], and that it be permitted to make the trustee, A. Y. Martin, a defendant in said state court proceeding. On February 18th, 1909, the bankruptcy court entered an order, directing that the attachment lien be preserved for the benefit of the bankrupt estate, as provided in 67f, and the referee, under authority from the court, made an order authorizing the trustee to institute an action for the recovery of the property and to intervene in the state court. Thereafter the trustee in bankruptcy instituted an action in the McCracken circuit court, praying that said conveyance be set aside as fraudulent and void as against creditors both before and after the execution and delivery of the deed, and setting up his right as trustee in bankruptcy to be substituted as the real party in interest in the suits then pending in the state court, and further praying that all rights of action and recoveries resulting [236 U.S. 288, 294] therefrom should be decreed to pass to the trustee as assets of the bankrupt estate.
The trustee, as well as other parties, appealed to the Kentucky court of appeals, and that court rendered a judgment which we shall have occasion to consider more at length hereafter.
Subsequently, after the case had gone back to the McCracken circuit court from the court of appeals, the trustee filed his report of the sale of the property, and asked the court to direct him in the distribution of the proceeds of the sale in his hands. The Globe Bank & Trust Company, the First National Bank, and the Old State National Bank of Evansville, Indiana, claimed the whole of the fund recovered, and afterwards, upon the hearing, the [236 U.S. 288, 295] referee in bankruptcy entered an order, adjudging the three banks named, whose debts were created antecedent to the execution and delivery of the deed, entitled to the entire proceeds of the property, being the sum of $ 16,146.58,-a sum less than the total amount of their debts, leaving nothing for distribution among general creditors.
The district court affirmed the action of the referee, and an appeal was taken to the circuit court of appeals for the sixth circuit. A petition for review was filed at the same time.
It further appears that the Globe Bank & Trust Company, the First National Bank, and the Old State National Bank of Evansville, Indiana, had originally filed proofs of debts, setting up their claims in bankruptcy. Afterwards the banks filed amended and supplemental petitions and proofs of claims, setting up their alleged priority, to which pleadings the trustee filed a response, and the order appealed from was entered. The circuit court of appeals, treating the case as before it upon appeal (119 C. C. A. 363, 201 Fed. 31), entered a decree from which the present appeal is taken, reversing the order and decree of the district court, and finding that the trustee held the fund for distribution among all the creditors of the estate, and not for the exclusive benefit of the banks named as prior creditors.
It is first contended that this court has no jurisdiction because the case, if not properly before the circuit court of appeals by petition for review, should have been taken to that court under 25 of the bankruptcy act, which section limits the time of appeal and requires special findings of fact in bankruptcy proceedings upon claims. We are of opinion, however, that the circuit court of appeals rightly decided (119 C. C. A. 363, 201 Fed. 31), that the contest over the distribution of this fund in the hands of the trustee was a controversy arising in the bankruptcy proceedings, and hence appealable as other cases in equity [236 U.S. 288, 296] under the circuit court of appeals act, and the appeals to the circuit court of appeals and this court were properly taken. Hewit v. Berlin Mach. Works, 194 U.S. 296 , 48 L. ed. 986, 24 Sup. Ct. Rep. 690; Coder v. Arts, 213 U.S. 223 , 53 L. ed. 772, 29 Sup. Ct. Rep. 436, 16 Ann. Cas. 1008; Knapp v. Milwaukee Trust Co. 216 U.S. 545 , 54 L. ed. 610, 30 Sup. Ct. Rep. 412; Re Loving, 224 U.S. 183 , 56 L. ed. 725, 32 Sup. Ct. Rep. 446; Re Mueller, 68 C. C. A. 349, 135 Fed. 711. This view of the jurisdiction of the court results in the denial of the petition for writ of certiorari in No. 292, submitted at the same time with the other cases now under consideration.
Under 70a of the bankruptcy act, the trustee of the estate is vested with the title of the bankrupt, including all property transferred by him in fraud of creditors, and [236 U.S. 288, 297] property which, prior to the filing of the petition, he could by any means have transferred, or which might have been levied upon and sold under judicial process against him.
Under 70e, of the same act, the trustee may avoid any transfer by the bankrupt of his property which any creditor of the bankrupt might have avoided, and he is given authority to recover the property in the hands of anyone not a bona fide holder for value. The authority of the trustee to prosecute such actions does not seem to be questioned, and is ample for the purpose involved in the present suit. Security Warehousing Co. v. Hand, 206 U.S. 415, 425 , 426 S., 51 L. ed. 1117, 1123, 1124, 27 Sup. Ct. Rep. 720, 11 Ann. Cas. 789.
It is the contention of the appellants that, as the conveyances were held in the Kentucky courts to be void under that section as to creditors whose debts and demands then existed, and because of the lack of actual fraud were held not to be void as to subsequent creditors or purchasers, they are entitled to priority because of the Kentucky statute and the judicial determinations of the state court.
The argument of the appellants does not depend upon the attachments alone, but is based upon their right to [236 U.S. 288, 298] subject the property, which right they contend existed long prior to the four months before the institution of the bankruptcy proceedings. But this argment must be considered in the light of the provisions of 67f. That section distinctly provides that all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, within four months of the filing of the petition in bankruptcy, shall be deemed null and void, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, as was done in this case, order that the right under the levy, judgment, attachment, or other lien be preserved for the benefit of the estate, in which event the same shall pass to and be preserved by the trustee for the benefit of the estate. Except for the attachments, the appellant banks had no specific lien upon the estate.
The attachments were doubtless sued out because, under the Kentucky statute, the parties were entitled thereby to gain a preference over other intervening creditors. Stamper v. Hibbs, 94 Ky. 358, 22 S. W. 607. The creditors had a right, it is true, to bring an action to set aside the conveyance as against existing creditors, but that right was not supported by any pre-existing lien. The suit was instituted to assert the creditors' rights against the property, and thus to subject it to the payment of their claims. The banks had a right of action for this purpose, but the property was not subjected to attachment, nor was there any action seeking to enforce rights in the property until the suits were begun, and that was within four months of the filing of the bankruptcy petition.
With attachments and liens thus acquired under state laws, the bankruptcy act dealt in provisions which were superior to all state laws upon the subject, in virtue of the [236 U.S. 288, 299] constitutional authority of Congress to enact a uniform system of bankruptcy. Re Watts, 190 U.S. 1, 27 , 47 S. L. ed. 933, 941, 23 Sup. Ct. Rep. 718, 14 Am. Crim. Rep. 48; First Nat. Bank v. Staake, 202 U.S. 141, 148 , 50 S. L. ed. 967, 970, 26 Sup. Ct. Rep. 580.
The difference, having the provisions of the act in view, between the beginning of a proceeding to assert liens that existed more than four months before the filing of the petition in bankruptcy, and the attempt to create them by attachment and other proceedings within four months, has been recognized in decisions of this court. In Metcalf Bros. v. Barker, 187 U.S. 165 , 47 L. ed. 122, 23 Sup. Ct. Rep. 67, a proceeding to give effect to a prior lien existing more than four months before the filing of the bankruptcy petition was held not within the meaning of 67f of the bankruptcy act. In Clarke v. Larremore, 188 U.S. 486 , 47 L. ed. 555, 23 Sup. Ct. Rep. 363, Metcalf Bros. v. Barker was distinguished, and it was held that where a judgment in the state court had gone so far that an execution had been realized by sale of the debtor's property, and the money was yet in the hands of the sheriff, who held it under a restraining order issued in a suit by another creditor, and the time for the return of the execution had not yet elapsed, and a bankruptcy petition was filed, the money did not belong to the judgment creditor, but passed under 67f to the trustee in bankruptcy.
'This clause evidently contemplates that attaching creditors may acquire liens upon property which would not pass to the bankrupt if the liens were absolutely annulled, and therefore recognizes such liens, but extends their operation to the general creditors. Had no proceedings in bankruptcy been taken, doubtless this property would have been sold for the benefit of the attaching creditors.' And in the Staake Case it was held that it made no difference that the diligent creditor was thereby deprived of a preference which would have been entirely legal under the state law. It was also held that the rule that the trustee stands in the shoes of the bankrupt has no application to 67f, where the trustee is permitted to assert a superior right for the benefit of general creditors.
The section (67f) was again before this court in Miller v. New Orleans Acid & Fertilizer Co. 211 U.S. 496 , 53 L. ed. 300, 29 Sup. Ct. Rep. 176. In that case, First Nat. Bank v. Staake, supra, was quoted with approval, and it was held that the right to preserve liens under subdivision f of 67 extended to causes of action arising under state law, and that while the state court had the right to entertain suits to avoid conveyances under the law of the state, under 67f the right to the lien of preference arising from the suit might, by authority of the court, be preserved for the benefit of the bankrupt estate. In that case it was further held that the proceeding and judgment in the state court did not prejudice the right of the bankruptcy court to determine among what creditors the property should be distributed, and that such questions were exclusively cognizable in the bankruptcy court. See also Rock Island Plow Co. v. Reardon, 222 U.S. 354 , 56 L. ed. 231, 32 Sup. Ct. Rep. 164.
It is contended, however, by the appellants, that if we [236 U.S. 288, 301] assume that under 67f of the bankruptcy act, the property or its proceeds must come to the trustee, to be distributed by him under the orders of the bankruptcy court for the benefit of the estate, that inasmuch as, under the statute of Kentucky, creditors existing prior to the making of the deed in question were entitled to be preferred in the distribution of the proceeds, that right is protected by subsection 5 of 64b of the bankruptcy act, which provides that the debts to have priority, except as therein provided, and to be paid in full out of bankrupt estates, are, among others, 'debts owing to any person who, by the laws of the states or the United States, is entitled to priority;' and it is contended that this subsection, as considered by the circuit court of appeals of the sixth circuit in an opinion written by the late Justice Lurton, Re Bennett, 82 C. C. A. 531, 153 Fed. 673, maintains that position. But an examination of that case shows that it dealt with a statutory lien created under 2487 of the Kentucky statutes, giving preferences to persons furnishing materials or supplies to manufacturing companies, and creating a lien upon the property in cases of such companies in case of an assignment for the benefit of creditors, or where the property is distributed among creditors by operation of law or by act of the company. It was held that such statutory lien gave a substantial right in or inchoate lien upon the property from the date of furnishing the material, within the spirit and meaning of 64b, subsection 5, of the bankruptcy act. That case, and such cases as Re Laird, 48 C. C. A. 538, 109 Fed. 550, which dealt with labor claims, recognize the purpose of Congress in passing 64b, to maintain statutory liens and preferences in such cases in the distribution of the bankrupt estate.
We are unable to see that the case has any bearing upon the construction of 67f and the cases now under consideration. Under our system of bankruptcy, and in the [236 U.S. 288, 302] administration of assignments under state laws, there are certain persons, such as those furnishing material or labor, that, in certain specified ways, are given preference in the distribution of insolvent estates. It is a statutory lien of that kind with which the court dealt in Re Bennett.
'It is true the trustee asked that the conveyance be declared fraudulent as to all creditors, both subsequent and antecedent, while the court only adjudged that the conveyance was fraudulent as to antecedent creditors, but we do not understand that the trustee in bankruptcy is complaining of the judgment in so far as it refused to adjudge the conveyance actually fraudulent. The judgment does not undertake to dispose of the proceeds that may be realized from the sale of the property, but leaves this question open for future determination, and we do not doubt that, when the court comes to make an order concerning the disposition of the proceeds in the hands of the trustee as special commissioner, it will direct that the proceeds be paid over to the trustee in bankruptcy, to be administered as a part of the estate of the bankrupt in the bankruptcy court. In anticipation of what we assume the court will do, we may with propriety in this opinion direct that it make such orders. If the court in the judgment had undertaken to divest the trustee of the control of this fund, we would upon this point reverse the judgment, with directions to proceed as indicated; but, as the court did not make such an order, we are of the opinion that, on the appeal of the trustee, the judgment of the lower court should be affirmed.
Therefore it appears that the judgment of the lower court, directing the proceeds to be disposed of in the bankruptcy proceedings, was distinctly affirmed, and the court declared that a contrary holding would have been reversed.
But we do not think in this part of the opinion the court of appeals of Kentucky intended in anywise to depart from its affirmation of the judgment of the circuit court upon the trustee's appeal and its explicit recognition of the authority of the bankruptcy court to control the disposition of the proceeds of the sale. The court did not consider 67f in its opinion, nor did it give, as it had no authority so to do, any specific direction as to the distribution of the fund in the bankruptcy court. The McCracken circuit court, after the mandate came down, repeated its order as to the distribution in the bankruptcy court by reference to its former judgment, and the trustee applied for an order in that court, which was made and subsequently appealed from in the present case.
Under the bankruptcy act, when the conveyance was set aside, the lien or attachment being within four months of the bankruptcy proceeding, the bankrupt being then insolvent, of which fact no question is made, and the bankruptcy court having ordered that the lien be preserved for the benefit of creditors, it became good under the provisions of the bankruptcy act for the benefit of all the creditors of the estate. Under this order the bankruptcy court had acquired jurisdiction,-the state court had no possession of the property except such as the attachment gave,-and after the conveyance was set aside in the state court, for which purpose the state court is given concurrent jurisdiction by 70 of the bankruptcy act, it had the right to determine for itself the disposition of the fund arising from the property sold. Miller v. New Orleans Acid & Fertilizer Co. 211 U.S. 496 , 53 L. ed. 300, 29 Sup. Ct. Rep. 176. [236 U.S. 288, 305] We find no error in the decree of the Circuit Court of Appeals, directing the distribution of the proceeds of the sale for the benefit of all the creditors of the estate. The decree is accordingly affirmed.
Mr. Justice Pitney and Mr. Justice McReynolds dissenting.

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