196 U. S. Statement of the Case. LUCIUS v. CAWTHON-COLEMAN COMPANY. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA. No. 110. Submitted December 13, 1904.-Decided January 3, 1905. The bankruptcy court has jurisdiction to determine on a claim asserted by the bankrupt whether property in the hands of the trustee is exempt; and while an erroneous decision against the asserted right may be corrected in the appropriate mode for the correction of errors, the jurisdiction of the court is not in issue within the meaning of the act of March 3, 1891, and a direct appeal to this court will not lie. THIS is an appeal from a decree of the District Court of the United States for the Southern District of Alabama, sitting in bankruptcy, establishing and directing the enforcement of a lien upon the proceeds of two policies of insurance in the hands of the trustee in bankruptcy. The District Court filed findings of fact and its conclusions of law, in pursuance to the third subdivision of General Order in Bankruptcy 36; and an appeal was taken upon the question of jurisdiction alone, under the supposed authority of the fifth section of the judiciary act of March 3, 1891. In substance the pertinent facts stated in the findings were as follows: D. D. Lucius, a resident citizen of Alabama, was, in voluntary proceedings, adjudged a bankrupt, and the case was sent to a referee. In his schedules, Lucius claimed as exempt drugs to the value of $1,000 and $1,000 of a balance of $1,150 due upon the aforementioned policies of insurance. The policies subsequently came into the possession of the trustee in bankruptcy. The Cawthon-Coleman Company were creditors of Lucius for about the sum of $1,000, evidenced by a note containing a waiver of exemption of personal property, and secured by a mortgage upon the homestead of Lucius, which mortgage contained a stipulation for insurance for the benefit of the mortgagees. The two policies above referred to were obtained in consequence of the stipulation referred to, and while in force and before the adjudication in bankruptcy the dwelling insured was destroyed by fire. Claiming, by reason of the facts just stated, an equitable lien upon the proceeds of the insurance, the Cawthon-Coleman Company filed a petition in the bankruptcy proceedings to establish and enforce their alleged lien. During the pendency of this proceeding the trustee in bankruptcy collected the balance due upon the policies. The trustee reported an allowance of the exemption out of such proceeds as claimed by the bankrupt, and shortly afterwards the bankrupt filed a plea denying jurisdiction in the court to hear and determine the claim of lien. This plea was overruled by the referee, who also refused to confirm the allowance of the exemption claimed by the bankrupt, and an order was made by the referee directing the trustee to pay to the CawthonColeman Company on the mortgage indebtedness the sum of $1,001.40 out of the insurance proceeds. Thereafter, to quote from the findings, "upon a review by the district judge sitting in bankruptcy, of the referee's decision, the judge affirmed it, and rendered a decree asserting that the bankruptcy court had jurisdiction to hear and determine this matter, and granted the relief prayed by the petition of Cawthon-Coleman Company." This appeal on the question of jurisdiction was then taken direct to this court. Mr. Harry Pillans and Mr. William James Johnson for appellant: The bankruptcy court is of limited jurisdiction and has only the authority conferred by the statute creating it. Re Morris, Fed. Cas. 9,825; Collier on Bankruptcy, 11. Where jurisdiction of the court has been sustained see Re Turnbull, 106 Fed. Rep. 667; Re Mayer, 108 Fed. Rep. 599; McGahan v. Anderson, 113 Fed. Rep. 115; Brand. on Bankr., 2d ed., 126, § 2, and cases there cited. It has, however, been expressly held that property generally exempt cannot be subjected in the bankruptcy court to the satisfaction of the debt of a creditor who holds a waiver of exemption as to this particular debt, or has a claim of lien on the exempt property. Re Grimes, 96 Fed. Rep. 534; Woodruff v. Cheeves, 105 Fed. Rep. 601, 606; Re Hill, 96 Fed. Rep. 185; Lockwood v. Exchange Bank, 190 U. S. 294; Re Hatch, 102 Fed. Rep. 280; Re Jackson, 116 Fed. Rep. 46; Ingram v. Wilson, 125 Fed. Rep. 913. The cases cited by the judge below, to the effect that the court had jurisdiction, to wit: Cannon v. Dexter Broom Co., 120 Fed. Rep. 657; Re Butler, 120 Fed. Rep. 100; Re Boyd, 120 Fed. Rep. 999; Re Campbell, 124 Fed. Rep. 417, are all on the border line. They involve cases in which the state statutes provided that goods shall not be exempt against claims for the unpaid purchase price. They are flatly opposed by the cases cited supra. There was no appearance or brief for appellee. MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court. By the express terms of subdivision 11 of section 2 of the Bankruptcy Act of 1898 jurisdiction is conferred upon courts of bankruptcy to determine all claims of bankrupts to their exemptions. When, therefore, as in the case at bar, property of the bankrupt has come into the possession of the trustee in bankruptcy, and the bankrupt has asserted in the bankruptcy court a claim to be entitled to a part or the whole of such property, as exempt property, the bankruptcy court necessarily is vested with jurisdiction to determine upon the facts before it the validity of the claimed exemption. An erroneous decision against an asserted right of exemption and a consequently erroneous holding that the property forms assets of the estate in bankruptcy, to be administered under the direction of the bankruptcy court, while subject to correction in the mode appropriate for the correction of errors, Lockwood v. Exchange Bank, 190 U. S. 294, does not create a question of jurisdiction proper to be passed upon by this court by a direct appeal under the provisions of the act of March 3, 1891. Denver First National Bank v. Klug, 186 U. S. 202, 204, and cases cited. It necessarily results from the foregoing that as the bankruptcy court determined that the proceeds of the insurance policies in the hands of the trustee were assets of the estate in bankruptcy and not exempt property of the bankrupt, the jurisdiction existed to proceed to adjudicate the validity of an alleged equitable lien upon such property. Hutchinson v. Otis, 190 U.S. 552, 555. As, therefore, upon the record before us, the jurisdiction of the court was not in issue within the meaning of the act of March 3, 1891, the direct appeal to this court was not properly brought, and the order must be Appeal dismissed. WOLFF v. DISTRICT OF COLUMBIA. ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA. No. 62. Argued November 11, 1904.-Decided January 3, 1905. An object which subserves the use of streets need not necessarily be considered an obstruction although it may occupy some part of the space of the street. The duty of a city to specially illuminate and guard the place where an object is depends upon whether such object is an unlawful obstruction. Under §§ 222 and 233, Rev. Stat., District of Columbia, the District is not prohibited from permitting a stepping-stone on any part of the street because it is an obstruction per se nor is the District required to specially illuminate and guard the place where such stepping-stone is located. 196 U. S. Argument for Plaintiff in Error. THIS is an action for damages for injury caused to plaintiff in error (who was also plaintiff below) by an alleged negligent omission of duty by the District of Columbia. On the twenty-seventh of October, 1895, about nine o'clock in the evening, plaintiff had occasion to visit Sangerbund Hall, a house on C street, in the city of Washington. On coming out, and for the purpose of approaching a wagon which was standing in the street, he walked rapidly across the sidewalk and, by falling over a block of stone called a stepping-stone or carriage step, which was on the sidewalk near the curb, broke his leg. Some time subsequently he was compelled to submit to its amputation. The charge against the city was that it was a body corporate and municipal, and had the power, and was its duty, to keep the sidewalks free of obstructions and nuisances, one of which, it was alleged, said stone was. And further, that it was the duty of the District of Columbia to keep the streets properly lighted. In neglect of both, it was alleged, it did "allow and suffer" the stone to be securely fastened into and remain upon the sidewalk, and did "keep and continue" it there during the nighttime of the twenty-seventh of October, without a light to show its presence or a watchman to notify wayfarers of its existence. Damages were laid at $25,000. The District of Columbia pleaded not guilty. A jury was impanelled. At the conclusion of the testimony the District moved the court to instruct a verdict for it on the ground that the plaintiff had not made out a case. The motion was granted, and a verdict rendered in accordance with the instructions. A motion for a new trial was made and denied, and the case was then taken to the Court of Appeals, which affirmed the judgment of the court below. 21 D. C. App. 464. Mr. John C. Gittings, with whom Mr. D. W. Baker was on the brief, for plaintiff in error: The stepping-stone was an unlawful obstruction per se. Secs. 222-230, Rev. Stat., Dist. of Col.; Dist. of Col. v. Libbey, |