c41:Nos. 5430, 5431

LEWIS, Circuit Judge
(dissenting).
Since bankruptcy proceedings are essentially actions in rem 21 agree that in voluntary proceedings (and petitions under Sec. 622 of Chapter XIII, are so limited) jurisdiction is conferred by the debtor’s voluntary appearance, for the situs of the debts follows the debtor. But I do not agree that the provisions of Sec. 2, sub. a(l) are intended only as venue requisites and would hold such provisions to be jurisdictional in nature, unaffected in this regard by the 1952 amendments to Sec. 32. The majority notes that prior to the 1952 amendments the provisions of Sec. 2, sub. a(l) were generally considered by the great weight of both case and text law to be jurisdictional. The legislative history of the 1952 amendments as reflected in the statutes themselves leads me to conclude that Congress has carefully distinguished between venue and jurisdiction and has intended no change in the basic interpretation of Sec. 2, sub. a(l).
The amendment to Sec. 2, sub. a(l) adds to it the words “or in any cases transferred to them pursuant to this title.” The Congressional Report in referring to this amendment states, “A clause is also added to section 2a(1) of the act by section 2(a) of the bill to authorize the court to exercise jurisdiction in a case so transferred to it.” It seems clear that by this amendment jurisdiction is conferred upon a transferee court when such jurisdiction did not previously exist. A valid transfer presupposes original jurisdiction in the transferor court and creates statutory jurisdiction for convenience in a transferee court where neither jurisdiction nor venue necessarily existed ab In this regard, the eff¿< ment is somewhat co: 20, Code of Criminal Procedure, 18 U.S.C.A., wherein provisio:granted to empower a accept a plea of guilty c at the place of arrest ment is in another cou: ent the transfer, ct of the amend-mp a rabie to Rule lal jurisdiction is district court to r nolo contendere although indict-ft. This grant of power is jurisdictional.
Sec. 32, sub. c, is t¿e procedural authorization to effect a transfer and specifically negatives the risdictional factors being present in the transferee court by stating that the judge may transfer “ * * * regardless of the location of the principal assets of the bankrupt, or his principal place of business, ojr his residence * * Such negation would not be necessary if Sec. 32, suj). c, when read in conjunction with Sec. ,2, sub. a(l) was not intended as a grarit of jurisdiction.
Sec. 32, sub. b, on the other hand, is carefully limited to venue and authorizes, on motion, a transfer when venue is improper “ * * * to any other court of bankruptcy in which it could have been brought.” Xhis section, too, recognizes the existence of the jurisdictional requisites of Seel. 2, sub. a(1).
As earlier indicated (because this is a voluntary proceeding j and the debtor sought the Kansas forum, I would find jurisdiction in the Kansas district. In an involuntary proceeding no jurisdiction would exist and the proceedings would require a dismissal, absent the debtor’s appearance and consent. In the instant case, the court might retain its jurisdiction, tiansfer it, or, because the jurisdictional factors of Sec. 2, sub. a(l) do not exist, refuse jurisdiction.
I would affirm the trial court in his view and statement “This court will not, however, in the view it now entertains, assume jurisdiction generally over bankrupts and wage earners not within its district and not within any of the categories set out in Sec. 2 of the Bankruptcy Act.”
I accordingly dissent from the view of the majority.
. Hanover Nat. Bank of City of New York v. Moyses, 186 U.S. 181, 22 S.Ct. 857, 46 L.Ed. 1113; In re Lustron Corp., 7 Cir., 184 F.2d 789; In re Pennsylvania Central Brewing Co., 3 Cir., 135 F.2d 60.
. Singleton v. Clemmer, 83 U.S.App.D.C. 107, 166 F.2d 963; United States v. Kratz, D.C.Neb., 97 F.Supp. 999; United States v. Binion, D.C.Nev., 107 F.Supp. 680; In re Schwindt, D.C.Or., 74 F.Supp. 618.
. Collier in Ms discussioi. of the dismissal of petitions under Chapter XIII gives approval to the statement, “It has long been the practice of bankruptcy courts to permit creditors or others not entitled to file pleadings or otherwise contest tho allegations of a petition to move for the vacation of an adjudication or the dismissal of a petition on grounds, whether strictly jurisdictional or not, that the proceedings ought not to he allowed to proceed. In fact, it is the duty of the court, sua sponte, when it believes its jurisdiction may have been imposed upon, to inquire into the facts and act in accordance therewith.” (See 9 Collier on Bankruptcy, Sec. 24.12, p. 595 and Sec. 41.12, p. 104, same volume.)

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