« iepriekšējāTurpināt »
ruptcy, yet the bankrupt may prosecute an appeal or writ of error thereon in his own name. Hill v. Harding (1880) 131 U., S. (Appendix) cc, 26 L. Ed. 310; O'Neil v. Dougherty (1873) 46 Cal. 575. But compare Parks y. Doty (1878) 13 Bush (Ky.) 727; Daugherty v. Ringo (1880) 1 Ky. Law Rep. 282. And see Jenkins v. International Bank (1881) 97 Ill. 568. Provided he obtains the written consent of the trustee in bankruptcy. Christy Des Moines City Ry. Co. (1905) 126 Iowa, 428, 102 N. W. 194.
to the federal court for a stay of such proceedings. In re William E. De Laney & Co. (D. C. 1903) 124 Fed. 280, 10 Am. Bankr. Rep. 634.
If the plaintiff has procured the appointment of a receiver in his supplementary proceedings, and the latter has taken actual possession of the property, he will not, under any ordinary circumstances, be interfered with by the bankruptcy court, but leave will be given to the trustee to intervene in the creditor's action, for the purpose of contesting his claim, if there is any ground to do so, and for the protection of the interests of the general creditors. In re Whipple (D. C. 1876) Fed. Cas. No. 17,512,
12. Proceedings on appeal.--The bankruptcy of a party does not prevent the hearing and determination of an appeal from a judgment of a state court by the appellate court of the state, and the court of bankruptcy will not order a stay of the proceedings on appeal. Smith v. Meisenheimer (1898) 104 Ky. 753, 47 S. W. 1087; Flanagan v. Pearson (1875) 42 Tex. 1, 19 Am. Rep. 40; Merritt v. Glidden (1870) 39 Cal. 559, 2 Am. Rep. 479; Alston v. Wingfield (1874) 53 Ga. 18; Booker V. Adkins (1872) 48 Ala. 529; In re Hirsch (D. C. 1868) 2 N. B. R. 3, Fed. Cas. No. 6,529; Booker v. Blythe (1909) 90 Ark. 165, 118 S. W. 401; Bennett v. Bennett (1901) 65 S. W. 12, 23 Ky. Law Rep. 1281. Compare In re Metcalf (D. C. 1867) 1 N. B. R. 201, Fed. Cas. No. 9,494; In re Leszynsky (D. C. 1869) Fed. Cas. No. 8,278. See United Wireless Telegraph Co. v. National Electric Signaling Co. (1912) 198 Fed. 385, 117 C. C. A. 261, 28 Am. Bankr. Rep. 889.
Judgment against defendant and his sureties on appeal from justice court judgment, rendered prior to bankruptcy, held not void though pending appeal defendant was adjudged a bankrupt, the bankruptcy court having authorized plaintiff to proceed to judgment. Kohn, Weil & Co. v. Weinberg (Miss. 1915) 70 So. 353.
Where the bankrupt was the appellant, his trustee, on producing the proper evidence of his official character, may, on motion, be substituted as appellant in the case. Herndon v. Howard (1869) 9 Wall. 664, 19 L. Ed. 809; Knox V. Exchange Bank (1870) 12 Wall. 379, 20 L. Ed. 287. See Sigler v. Shehy (1816) 15 Ohio, 471.
If the trustee does not intervene and seek to be substituted, still the bankrupt, prior to his discharge, has sufficient interest in preventing the establishment of a claim against him to enable him to maintain an appeal from a judgment thereon. Sanford v. Sanford (1874) 58 N. Y. 67, 17 Am. Rep. 206; O'Neil v. Dougherty (1873) 46 Cal. 575; Hughes v. Thweatt (1879) 57 Miss. 376.
Though the judgment was not rendered until after the adjudication in bank
After the bankrupt has received his discharge, he has no further interest in any action pending against him, and cannot prosecute an appeal from a judgment rendered against him before the discharge was granted, though his trustee may do so. Knox v. Exchange Bank (1870) 12 Wall. 379, 20 L. Ed. 287; Wilson v. McMullen (1883) 4 Ky. Law Rep. 895.
13. Contempt proceedings. — A fine imposed by a state court for a contempt, committed by willfully presenting to the court false affidavits, is not a debt which is released by a discharge in bankruptcy, and a court of bankruptcy will not stay proceedings against the bankrupt for its enforcement. In re Koronsky (1903) 170 Fed. 719, 96 C. C. A. 39, 21 Am. Bankr. Rep. 851. A fine imposed on a bankrupt, although after the filing of the petition in bankruptcy, by a state court for a criminal contempt is not a dischargeable debt in bankruptcy, and proceedings for its enforcement will not be stayed by the court of bankruptcy, if the contempt itself was committed before the filing of the petition. In re Hall (D. C. 1909) 170 Fed. 721, 22 Am. Bankr. Rep. 498.
It is the duty of a court of bankruptcy to stay contempt proceedings against a bankrupt, in a civil suit against him in a state court on a debt or claim from which his discharge would be a release, for twelve months or until his right to a discharge has been determined. In re Adler (1906) 144 Fed. 659, 75 C. C. A. 461, 16 Am. Bankr. Rep. 414.
14. Effect of the stay.-When the court of bankruptcy has exercised its power to order a stay of proceedings in a pending suit against the bankrupt, founded on a debt from which his discharge would be a release, this does not divest the state court of jurisdiction over the case, and the stay does not operate as a bar to the action, but only as a suspension of proceedings until the question of the bankrupt's discharge shall have been determined in the United States court sitting in bankruptcy. After the determination of that question in that court, the court in which the suit is pending may proceed to such judgment as the circumstances of the case may require. If the discharge is refused, the plaintiff, upon
sufficient property to pay the debt in suit, yet he cannot recover if it is shown that the payment of other just claims, contracted since his discharge in bankruptcy, would exhaust his estate and leave nothing for the plaintiff. Eckler v. Galbraith (1876) 12 Bush (Ky.) 71.
A promise clearly relating to financial ability at some future time will not sustain an immediate action. Samuel v. Cravens (1850) 10 Ark. 380.
The promise of an adjudicated bankrupt that, "just as soon as my counsel tells me my case is all cleaned up, I will place a policy * on my life in your favor, and as soon as I can get back in harness again will do all I can to pay you," falls short of an express promise to pay. Holt v. Akarman (N. J. 1913) 86 A. 408.
47. Remedies of creditor.-Where the new promise is made after the adjudication in bankruptcy, but before the end of the proceedings, the creditor cannot prove a claim on it in the bankruptcy. Kingston v. Wharton (1816) 2 Serg. & R. (Pa.) 208, 7 Am. Dec, 638. Nor sue on it until after the question of the bankrupt's discharge has been determined. Egbert McMichael (1848) 9 B. Mon. (Ky.) 44.
The fact that the creditor has proved the original debt in the bankruptcy proceedings, and received a dividend, does not prevent him from recovering the balance in an action on the new promise. Kingston v. Wharton (1816) 2 Serg. & R. (Pa.) 208, 7 Am. Dec. 638. And an express promise to pay part of a debt, discharged by the proceedings in bankruptcy, will revive the debt pro tanto. Badger v. Gilmore (1856) 33 N. H. 361, 66 Am. Dec. 729.
The original debt is revived only as of the date of the new promise, and where judgment is obtained upon the latter, the debtor is entitled to claim the exemption provided by law in force at the latter date. Willis v. Cushman (1888) 115 Ind. 100, 17 N. E. 168. Where he has agreed that work done by him for the creditor shall go towards the payment of the discharged debt, this constitutes a new promise to pay the debt, and he cannot maintain an action to recover the value of such work. Sampson v. Curtis (1855) 39 Me. 398.
The creditor may also recover interest on the original debt as well as the principal of it, where the bankrupt promised full payment, as the promise revives the debt on the original con. sideration. Stern v. Bradner Smith & Co. (1907) 225 Ill. 430, 80 N. E. 307, 116 Am. St. Rep. 151.
Where the debt had been reduced to judgment, it is so far extinguished by the discharge in bankruptcy that the new promise to pay will not authorize the creditor at once to issue execution and sell the debtor's land, but he
must first revive the judgment. Graham v. Dreutzer (1890) 75 Wis. 558, 44 N. W. 776, 17 Am. St. Rep. 205. Nor can he arrest the debtor and hold him to bail. Glazier v. Stafford (1845) 4 Har. (Del.) 240.
Where the original debt is in such form as to be capable of assignment to a third person, the creditor may assign the new promise with it, and so enable the assignee to sue on it. Way v. Sperry (1850) 6 Cush. (Mass.) 238, 52 Am. Dec. 779; Underwood v. Eastman (1847) 18 N. H. 582; Badger v. Gilmore (1856) 33 N. H. 361, 66 Am. Dec. 729; Clark v. Atkinson (1853) 2 E. D. Smith (N. Y.) 112; Wolffe v. Eberlein (1883) 74 Ala. 99, 49 Am. Rep. 809. But compare White v. Cushing (1849) 30 Me. 267; Wardwell v. Foster (1850) 31 Me. 558; Moore v. Viele (1830) 4 Wend. (N. Y.) 420; Walbridge v. Harroon (1846) 18 Vt. 448.
Numerous cases hold that when the bankrupt has given a new promise sufficient to revive a debt barred by his discharge, the creditor, in bringing suit for the recovery of the debt, must de. clare on the original obligation or engagement, and not on the new promise. Bush v. Stanley (1887) 122 Ill. 406, 13 N. E. 249; Gruenberg v. Treanor (1903) 40 Misc. Rep. 232, 81 N. Y. Supp. 675; Turner v. Chrisman (1851) 20 Ohio, 332; Marshall Tracy (1874) 74 Ill. 379; Apperson v. Stewart (1872) 27 Ark. 619; Badger v. Gilmore (1856) 33 N. H. 361, 66 Am. Dec. 729; Fraley v. Kelly (1872) 67 N. C. 78; Riggs v. Roberts (1881) 85 N. C. 151, 39 Am. Rep. 692; Dusenbury v. Hoyt (1873) 53 N. Y. 521, 13 Am. Rep. 543. Other cases maintain that the original debt is extinguished by the discharge, and the only cause of action is on the new promise. Trueman v. Fenton, 2 Cowp. 544; Post v. Losey (1887) 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677; Murphy v. Crawford (1886) 114 Pa. 496, 7 Atl. 142; Hobough v. Murphy (1886) 114 Pa. 358, 7 Atl. 139; Bolton v. King (1884) 105 Pa. 78; Reeside v. Hadden (1849) 12 Pa. 243; Field's Estate (1830) 2 Rawle (Pa.) 351, 21 Am. Dec. 454; Chabot v. Tucker (1870) 39 Cal. 434; Ross v. Jordan (1879) 62 Ga. 298; Fleming v. Lullman (1881) 11 Mo. App. 104; Eckler v. Galbraith (1876) 12 Bush (Ky.) 71. Still other decisions leave it to the election of the creditor which course he will pursue, it being equally competent to him to sue directly on the new promise or to declare on the original debt and then plead the new promise in replication to the defendant's plea of his discharge in bankruptcy. Allen v. Ferguson (1873) 18 Wall. 1, 21 L. Ed. 854; Torry v. Krauss (1907) 149 Ala. 200, 43 South. 184; Horner v. Speed (1857) 2 Pat. & H. (Va.) 616; Wolffe v. Eberlein
(1883) 74 Ala, 99, 49 Am. Rep. 809; Nowland v. Lanagan (1885) 45 Ark. 108; Classen v. Schoenemann (1875) 80 ml, 304, 16 N. B. R. 98; Turner v. Chrisman (1851) 20 Ohio, 332; Hubbard y. Farrell (1882) 87 Ind. 215; Spooner v. Russell (1849) 30 Me. 454; Craig v. Seitz (1886) 63 Mich. 727, 30 N. W. 347.
48. Burden of proof and evidence.The burden rests on the plaintiff in an action, to prove a new promise to pay a debt released by the defendant's discharge in bankruptcy, and this fact he must establish by clear and satisfactory evidence. Old Town Nat. Bank of Baltimore v. Parker (1913) 121 Md. 61, 87 Atl. 1105; Goldstein v. Saur (Tex. Civ. App. 1913) 162 S. W. 441; Pearsall v. Tabour (1906) 98 Minn. 248, 108 N. W. 808; Brooks v. Paine (1903) 77 S. W. 190, 25 Ky. Law Rep. 1125; Griel v. Solomon (1886) 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Badger v. Gilmore (1856) 33 N. H. 361, 66 Am. Dec. 729; Spaulding v. Vincent (1852) 24 Vt. 501; Haines v. Stauffer (1850) 13 Pa. 541, 53 Am. Dec. 493;
Dye v. Bertram, 6 Am. Law Rep. 355; Atwood Gillett (1846) 2 Doug. (Mich.) 206.
The proof must correspond with the allegations of the declaration, and if plaintiff alleges an unconditional promise of defendant to pay, proof of a conditional promise will not authorize a recovery. Buford v. Crigler (1886) 7 Ky. Law Rep. 662; Doom v. Snyder (1888) 10 Ky. Law Rep. 281. On any doubtful or conflicting testimony, the question whether a new promise was made must go to the jury. Bennett v. Bennett (1855) 3 R. I. 152, 67 Am. Dec. 498; United Society in Canterbury v. Winkley (1856) 7 Gray (Mass.) 460. If there is any doubt or ambiguity as to the debt to which the new promise was meant to apply, the plaintiff must identify it by strong and positive proof. Pearsall v. Tabour (1906) 98 Minn. 248, 108 N. W. 808. If the origiñal debt was evidenced by a promissory note, the note itself may be given in evidence to show the consideration for the new promise. Egbert v. McMichael (1848) 9 B. Mon. (Ky.) 44.
Sec. 9602. Process, pleadings, and adjudica- 9608. Jurisdiction of appellate courts. tions.
9609. Appeals and writs of error. 9603. Jury trials.
9610. Arbitration of controversies. 9604. Oaths, affirmations.
9611. Compromises. 9605. Evidence.
9612. Designation of newspapers. 9606. Reference of cases after adjudica- 9613. Offenses. tion.
9614. Rules, forms, and orders. 9607. Jurisdiction of United States and 9615. Computation of time. State courts.
9616. Transfer of cases. § 9602. (Act July 1, 1898, c. 541, § 18, as amended, Act Feb. 5,
1903, c. 487, § 6.) Process, pleadings, and adjudications. Process, Pleadings, and Adjudications.—a Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpæna, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service can not be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits to enforce a legal or equitable lien in courts of the United States, except that, unless the judge shall otherwise direct, the order shall be published not more than once a week for two consecutive weeks, and the return day shall be ten days after the last publication unless the judge shall for cause fix a longer time.
b The bankrupt, or any creditor, may appear and plead to the petition within five days after the return day, or within such further time as the court may allow.
c All pleadings setting up matters of fact shall be verified under oath.
d If the bankrupt, or any of his creditors, shall appear, within the time limited, and controvert the facts alleged in the petition, the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury, except in cases where a jury trial is given by this Act, and makes the adjudication or dismiss the petition.
e If on the last day within which pleadings may be filed none are filed by the bankrupt or any of his creditors, the judge shall on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.
f If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee.
g Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee. (30 Stat. 551. 32 Stat. 798.)
Said subdivisions a and b were amended by Act Feb. 5, 1903, c. 487, § 6, cited above, to read as set forth here.
In this section, as originally enacted, subdivisions a and b were as follows:
"a Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpona, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service can not be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits in equity in courts of the United States.
“b The bankrupt, or any creditor, may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow."
Section 19 of said amendatory Act Feb. 5, 1903, c. 487, 32 Stat. 801, provided that the act should not apply to bankruptcy cases pending when it took effect, but that such cases should be adjudicated and disposed of conformably to the provisions of the original act.
Notes of Decisions 1. Formal requisites of petition in bank- 23. Persons entitled to oppose adjudiruptcy.
cation. 2. In partnership cases.
24. Answer and other pleadings. 3. Allegations of petition as to petitioning 25.
28. Defenses and grounds of opposition.
30. Burden of proof and evidence.
31. Discontinuance and dismissal of pro-
ceedings. ment of property.
By consent or agreement of par9. Suffering a preference through le
ties. gal proceedings.
Notice to creditors. 10. Appointment of receiver.
Reinstatement after dismissal. 11.
Multifarious and misjoined matter, 35. Trial or hearing.
37. Conclusiveness and effect.
By officers or agents of corpora- 38. Effect on status of bankrupt cor tion.
poration, 15. Amendment of petition.
89. Vacating and setting aside. 16.
Defects and omissions amendable 17. Setting up new act of bankruptcy.
1. Formal requisites of petition in 18. Filing and presenting petition.
bankruptcy. A bankruptcy petition 19.
Service of process. 20. Notice to creditors.
must be addressed to the court author21. Parties.
ized by law to take cognizance of the 22. Intervention and substitution of case, as determined by the residence parties.
of the bankrupt. In re Mitchell (1914)
219 Fed. 690, 135 C. C. A. 362, affirming order In re Mitchell & Co. (D. C. 1914) 211 Fed. 778.
Petitions in bankruptcy will not be placed on file nor considered unless made out on the prescribed printed forms, written or typewritten petitions being returned to the parties without action. Mahoney v. Ward (D. C. 1900) 100 Fed. 278, 3 Am. Bankr. Rep. 770.
It is not a sufficient reason for rejecting a petition in bankruptcy that the petitioning creditor first wrote his name in the petition in an abbreviated form, and that this was then erased and the name written in full. Malcom (D. C. 1842) Fed. Cas. No. 8,986.
A petition in bankruptcy filed before the promulgation of the official forms by the Supreme Court should not be dismissed for want of conformity there. to, but the court will order a new petition, in the form prescribed, to be filed nunc pro tunc, the original petition, however, not to be withdrawn from the files. In re Ogles (D. C. 1899) 93 Fed. 426, 1 Am. Bankr. Rep. 671.
A creditor's petition in bankruptcy, being in fact an original petition, is not deprived of its character as such merely because it contains a prayer by the petitioner to intervene in earlier proceedings, as a cautionary measure, in order that he might not be unrepresented in such earlier proceedings. In re Haff (1905) 136 Fed. 78, 68 C. C. A. 646, 13 Am. Bankr. Rep. 362.
The court will consider a petition in bankruptcy as the joint act of all the petitioners, and willful falsehood in one petitioner's verification will cause the summary dismissal of the petition as the fraud of all, and no copetitioner's prayer for an amendment will be heard. In re Keiler (D. C. 1878) 18 N. B. R. 10, Fed. Cas. No. 7,647.
2. — In partnership cases.-In proceedings in bankruptcy against a partnership, the general form for a creditors' petition should be used, with such adaptations as will meet the exigencies of the particular case. Mather v. Coe (D. C. 1899) 92 Fed. 333, 1 Am. Bankr. Rep. 504. And see In re Farley (D. C. 1902) 115 Fed. 359, 5 Am. Bankr. Rep. 266; In re Gay (D. C. 1899) 98 Fed. 870, 3 Am. Bankr. Rep. 529; In re Russell (D. C. 1899) 97 Fed. 32, 3 Am. Bankr. Rep. 529.
Where a voluntary petition by partners prays that “the petitioners" may be adjudged bankrupt, instead of "the said firm," but otherwise follows the official form, the variance is not material. In re Meyers (D. C. 1899) 97 Fed. 757, 3 Am. Bankr. Rep. 260. Proceedings to adjudge a partnership bankrupt, after its dissolution by the death of one of the partners, are not invalidated by the fact that the petition did not refer to the deceased partner, nor disclose that the partners
named were surviving partners, when the business was being continued as provided in the partnership articles. In re Coe (D. C. 1907) 157 Fed. 308, 19 Am. Bankr. Rep. 618. And see Hawkins v. Quinette (1911) 156 Mo. App. 153, 136 S. W. 246.
A petition in bankruptcy, whether by or against the firm, should set out the individual names of all the partners. Adams v. May (C. C. 1885) 27 Fed. 907. This rule applies where one member of a firm files his own petition in bankruptcy, but with the object of obtaining a discharge from the firm debts as well as his individual debts. In re Laughlin (D. C. 1899) 96 Fed. 589, 3 Am. Bankr. Rep. 1.
3. Allegations of petition as to petitioning creditors and their claims.The allegation as to the number of the bankrupt's existing creditors need not be made as a direct assertion of fact, but may be made upon information and belief. In re Scammon (D. C. 1874) 10 N. B. R. 66, Fed. Cas. No. 12,430; In re Joliet Iron & Steel Co. (D. C. 1874) 10 N. B. R. 60, Fed. Cas. No. 7,436; In re Scammon (D. C. 1874) 11 N. B. R. 280, Fed. Cas. No. 12,429; In re Mann (C. C. 1876) 14 N. B. R. 572, Fed. Cas. No. 9,033; Perin & Gaff Mfg. Co. v. Peale (D. C. 1878) 17 N. B. R. 377, Fed. Cas. No. 10,981; In re Roberts (1880) 71 Me. 390.
The petition should allege that the claims of the petitioning creditors amount to the jurisdictional sum, but the want of such an averment may be cured by amendment. In re Pangborn (D. C. 1910) 185 Fed. 673, 26 Am. Bankr. Rep. 40; Roche v. Fox (D. C. 1877) 16 N. B. R. 461, Fed. Cas. No. 11,974; Ex parte Shouse (D. C. 1842) Fed. Cas. No. 12,815.
An allegation that the proposed bankrupt owes a debt, but not that it is due to the petitioning creditor, is insufficient. In re Western Sav. & Trust Co. (D. C. 1877) Fed. Cas. No. 17,442.
The particulars of the claims should be so far explained in the petition that the court may see, on the face of it, that they are provable debts. Farthing (D. C. 1913) 202 Fed. 557, 29 Am. Bankr. Rep. 732; In re Hadley (D. C. 1875) 12 N. B. R. 366, Fed. Cas. No. 5,894; In re Harmon (C. C. 1877) Fed. Cas. No. 6,078; In re White (D. C. 1905) 135 Fed. 199, 14 Am. Bankr. Rep. 241.
The provision of section 9641, post, requiring the consideration of a claim to be set forth and sworn to, relates to the proof of the claim and not to the averments of the petition. In re Brett (D. C. 1904) 130 Fed. 981, 12, Am. Bankr. Rep. 492.
The description of the several debts need not state whether they are secured or unsecured. In re Harmon (C. C. 1877) Fed. Cas. No. 6,078. An allegation that the indebtedness of the respondent to one of the petitioners was fraudulently contracted is imperti