Thompson

This case presents the question of whether the referee had jurisdiction to determine in a summary proceeding creditor Daehner’s right to retain certain funds in his possession. The referee held that he did not. The United States District Court affirmed. A solution hinges upon a determination of whether the referee had constructive possession of the property involved at the time the summary proceeding was attempted to be invoked, it being conceded that the referee did not have actual possession.

On November 20, 1947, R. H. Dachner levied execution in the amount of $26,-266.81 on a judgment in his favor against the Union Lead Mining and Smelter Company, hereafter Union Company, by a Nevada trial court, from which said judgment an appeal was taken. Five days after the entry of said judgment, an agreement was made on the company’s behalf whereby, in exchange for a favorable settlement on another matter, the company agreed to dismiss the appeal and allow Dachner to retain the $26,266.81. The appeal was dismissed but was later reinstated at appellant’s request. In prosecuting the appeal after the settlement no offer to forego that portion of the said settlement favorable to the…