GRUBB, District Judge
(after stating the facts as above). [1] The appeal presents the single question whether the failure of a bankrupt to apply for a discharge within the time required by law raider an earlier petition is a good ground for denying his discharge when applied for by the bankrupt under a later petition, in which no new assets are scheduled, as to creditors who held provable claims under the first petition, and whether it is proper to grant the discharge limiting the operation of it in cases, as in this case, in which there are also creditors whose claims are not provable under the first petition, to such claims.
Section 1, stilxl. 12, Act 1898, defines a discharge as “the release of the bankrupt from all his debts which are provable in bankruptcy, except such as are excepted by this act.” Section 14 provides that the court shall grant the discharge unless upon the hearing it appears that the bankrupt has done any one of the six certain things specified in the section. No one of them covers the ground for denying this bankrupt’s discharge by the court below. Section 17 provides that a discharge shall release a bankrupt from all his provable debts except four classes therein specified, none of which includes the debts excepted from the operation of this bankrupt's discharge by the court below. The argument is made with force, as this bankrupt was not shown to have been guilty of any offense depriving him of the right to a discharge, and as the excepted debts were provable in bankruptcy, and not comprised in any of the excluded classes, their exclusion, in effect, ingrafts on the bankruptcy act an additional ground for denying a discharge, by implication, when the act expresses the grounds for denying the bankrupt his discharge and the classes of debts excluded from its operation when granted.
The only express limitation upon the bankrupt’s right to renew his application for a discharge is the fifth ground mentioned in section 14, that in voluntary proceedings the bankrupt has been granted a discharge in. bankruptcy within six years. His right to renew his application in the event of a former denial or a failure to apply for a discharge within the required time has no expressed limitation in the bankruptcy act. If none is to be implied, it is open to the bankrupt, who has been denied a discharge after contest, to immediately file a second petition, and, within 30 days, renew* his application and compel liis creditors to relitigate his right to a discharge; and, in the event of the bankrupt’s failure to obtain his discharge under the second petition, to file a third and others without limit for the same purpose, and in the meantime prevent his creditors from collecting debts as to which he has been repeatedly held not to be entitled to a discharge. So the bankrupt could accomplish the same thing by intentionally failing to apply for his discharge within the statutory time, if convinced that he was not entitled thereto, and when pursued by his creditors, filing other petitions, without limit as to number, and thus suspending indefinitely the collection of debts as to which he had [36]*36no right 'to be discharged in bankruptcy. Such a situation would make the bankruptcy law in its practical administration oppressive and intolerable, and has led the courts to read into the law, by implication, the common-law principle of res adjudicata as a defense to an application for a discharge by a bankrupt who has already applied for a discharge from the same debt under a former petition and been denied it, or who, having filed a former petition, has failed to apply for his discharge thereunder until after the expiration of the time fixed by law therefor.
The principle is stated by the Circuit Court of Appeals for the Eighth Circuit in the case of Kuntz v. Young, 131 F. 719, 65 C. C. A. 477, as follows:
“A failure of the bankrupt to apply in due time for, or a refusal by the court to grant a discharge from the debts provable under one petition in bankruptcy, renders the question of a right to a discharge from those debts in a proceeding under a subsequent petition res adjudicata.”
This case has been followed by the Circuit Courts of Appeals for the First and Second Circuits as well as by numerous District Courts, and to secure uniformity of decision in the different circuits, if for no other reason, we incline to this view. Bluthenthal v. Jones, 208 U. S. 64-66, 28 Sup. Ct. 192, 52 D. Ed. 390 (dictum); Kuntz v. Young, 131 Fed. 719, 65 C. C. A. 477; In re Fiegenbaum, 121 Fed. 69, 57 C. C. A. 409 (Second Circuit); In re Kuffler, 151 Fed. 12, 80 C. C. A. 508 (Second Circuit); Id., 168 Fed. 1021, 93 C. C. A. 671 (certiorari denied by Supreme Court, 214 U. S. 520, 29 Sup. Ct. 701, 53 L. Ed. 1066); In re Silverman, 157 Fed. 675, 85 C. C. A. 224 (Second Circuit); In re Elby (D. C.) 157 Fed. 935; In re Stone (D. C.) 172 Fed. 947; In re Bramlett (D. C.) 161 Fed. 588; Pollet v. Cosel, 179 Fed. 488, 103 C. C. A. 68.(First Circuit) 30 L. R. A. (N. S.) 1164; In re Weintraub (D. C.) 133 Fed. 1000; In re Schnable (D. C.) 166 Fed. 383; In re Pullian (D. C.) 171 Fed. 595; In re Levenstien (D. C.) 180 Fed. 957; In re Westbrook (D. C.) 186 Fed. 414.
Doubt has arisen as to the procedure in cases in which the bankrupt is held to be entitled to his discharge under the second petition from certain debts incurred subsequently to the .filing of the first petition, but not as to such debts as were provable under the first petition. As the matter relates to the effect of a discharge upon a particular debt or debts, it would seem that the creditor should be remitted to the court in which he seeks to enforce his debt, to limit its effect, if pleaded by the bankrupt, as a discharge from it. In the case of L. Ed. 390, the Supreme Court said, as to the effect of an unlimited discharge granted under a second petition and without opposition from the creditor who sought to limit its effect when pleaded in a subsequent action to enforce the debt:
“Undoubtedly, as in all other judicial proceedings, an adjudication refusing ,a discharge in bankruptcy, finally determines, for all time and in all eourts, as between those parties or privies to it, the facts upon which the refusal was based. But courts are not bound to search the records of other courts and give effect to their'judgments. If there has been a conclusive adjudication of a subject in some other court, it is the duty of him who relies [37]*37upon it to plead it or in some manner bring it to tlie attention of the court in which it is sought to be enforced. Plaintiffs in error failed to do this. When an application was made by the bankrupt in the District Court for the Southern District of Florida, the judge of that court was, by the terms of the statute, bound to grant it, unless upon investigation it appeared that the bankrupt had committed one of the six offenses which are specified in section 14 of the bankruptcy act as amended. An objecting creditor might have proved upon that application that the bankrupt had committed one of the acts which barred his discharge, either by the production of evidence or by showing that in a previous bankruptcy proceeding it has been conclusively adjudicated, as between him and the bankrupt, that the bankrupt had committed one of such offenses. If that adjudication had been proved, it would have taken the place of other evidence and have been final upon the parties to it. But nothing of the kind took place.
Free access — add to your briefcase to read the full text and ask questions with AI
GRUBB, District Judge
(after stating the facts as above). [1] The appeal presents the single question whether the failure of a bankrupt to apply for a discharge within the time required by law raider an earlier petition is a good ground for denying his discharge when applied for by the bankrupt under a later petition, in which no new assets are scheduled, as to creditors who held provable claims under the first petition, and whether it is proper to grant the discharge limiting the operation of it in cases, as in this case, in which there are also creditors whose claims are not provable under the first petition, to such claims.
Section 1, stilxl. 12, Act 1898, defines a discharge as “the release of the bankrupt from all his debts which are provable in bankruptcy, except such as are excepted by this act.” Section 14 provides that the court shall grant the discharge unless upon the hearing it appears that the bankrupt has done any one of the six certain things specified in the section. No one of them covers the ground for denying this bankrupt’s discharge by the court below. Section 17 provides that a discharge shall release a bankrupt from all his provable debts except four classes therein specified, none of which includes the debts excepted from the operation of this bankrupt's discharge by the court below. The argument is made with force, as this bankrupt was not shown to have been guilty of any offense depriving him of the right to a discharge, and as the excepted debts were provable in bankruptcy, and not comprised in any of the excluded classes, their exclusion, in effect, ingrafts on the bankruptcy act an additional ground for denying a discharge, by implication, when the act expresses the grounds for denying the bankrupt his discharge and the classes of debts excluded from its operation when granted.
The only express limitation upon the bankrupt’s right to renew his application for a discharge is the fifth ground mentioned in section 14, that in voluntary proceedings the bankrupt has been granted a discharge in. bankruptcy within six years. His right to renew his application in the event of a former denial or a failure to apply for a discharge within the required time has no expressed limitation in the bankruptcy act. If none is to be implied, it is open to the bankrupt, who has been denied a discharge after contest, to immediately file a second petition, and, within 30 days, renew* his application and compel liis creditors to relitigate his right to a discharge; and, in the event of the bankrupt’s failure to obtain his discharge under the second petition, to file a third and others without limit for the same purpose, and in the meantime prevent his creditors from collecting debts as to which he has been repeatedly held not to be entitled to a discharge. So the bankrupt could accomplish the same thing by intentionally failing to apply for his discharge within the statutory time, if convinced that he was not entitled thereto, and when pursued by his creditors, filing other petitions, without limit as to number, and thus suspending indefinitely the collection of debts as to which he had [36]*36no right 'to be discharged in bankruptcy. Such a situation would make the bankruptcy law in its practical administration oppressive and intolerable, and has led the courts to read into the law, by implication, the common-law principle of res adjudicata as a defense to an application for a discharge by a bankrupt who has already applied for a discharge from the same debt under a former petition and been denied it, or who, having filed a former petition, has failed to apply for his discharge thereunder until after the expiration of the time fixed by law therefor.
The principle is stated by the Circuit Court of Appeals for the Eighth Circuit in the case of Kuntz v. Young, 131 F. 719, 65 C. C. A. 477, as follows:
“A failure of the bankrupt to apply in due time for, or a refusal by the court to grant a discharge from the debts provable under one petition in bankruptcy, renders the question of a right to a discharge from those debts in a proceeding under a subsequent petition res adjudicata.”
This case has been followed by the Circuit Courts of Appeals for the First and Second Circuits as well as by numerous District Courts, and to secure uniformity of decision in the different circuits, if for no other reason, we incline to this view. Bluthenthal v. Jones, 208 U. S. 64-66, 28 Sup. Ct. 192, 52 D. Ed. 390 (dictum); Kuntz v. Young, 131 Fed. 719, 65 C. C. A. 477; In re Fiegenbaum, 121 Fed. 69, 57 C. C. A. 409 (Second Circuit); In re Kuffler, 151 Fed. 12, 80 C. C. A. 508 (Second Circuit); Id., 168 Fed. 1021, 93 C. C. A. 671 (certiorari denied by Supreme Court, 214 U. S. 520, 29 Sup. Ct. 701, 53 L. Ed. 1066); In re Silverman, 157 Fed. 675, 85 C. C. A. 224 (Second Circuit); In re Elby (D. C.) 157 Fed. 935; In re Stone (D. C.) 172 Fed. 947; In re Bramlett (D. C.) 161 Fed. 588; Pollet v. Cosel, 179 Fed. 488, 103 C. C. A. 68.(First Circuit) 30 L. R. A. (N. S.) 1164; In re Weintraub (D. C.) 133 Fed. 1000; In re Schnable (D. C.) 166 Fed. 383; In re Pullian (D. C.) 171 Fed. 595; In re Levenstien (D. C.) 180 Fed. 957; In re Westbrook (D. C.) 186 Fed. 414.
Doubt has arisen as to the procedure in cases in which the bankrupt is held to be entitled to his discharge under the second petition from certain debts incurred subsequently to the .filing of the first petition, but not as to such debts as were provable under the first petition. As the matter relates to the effect of a discharge upon a particular debt or debts, it would seem that the creditor should be remitted to the court in which he seeks to enforce his debt, to limit its effect, if pleaded by the bankrupt, as a discharge from it. In the case of L. Ed. 390, the Supreme Court said, as to the effect of an unlimited discharge granted under a second petition and without opposition from the creditor who sought to limit its effect when pleaded in a subsequent action to enforce the debt:
“Undoubtedly, as in all other judicial proceedings, an adjudication refusing ,a discharge in bankruptcy, finally determines, for all time and in all eourts, as between those parties or privies to it, the facts upon which the refusal was based. But courts are not bound to search the records of other courts and give effect to their'judgments. If there has been a conclusive adjudication of a subject in some other court, it is the duty of him who relies [37]*37upon it to plead it or in some manner bring it to tlie attention of the court in which it is sought to be enforced. Plaintiffs in error failed to do this. When an application was made by the bankrupt in the District Court for the Southern District of Florida, the judge of that court was, by the terms of the statute, bound to grant it, unless upon investigation it appeared that the bankrupt had committed one of the six offenses which are specified in section 14 of the bankruptcy act as amended. An objecting creditor might have proved upon that application that the bankrupt had committed one of the acts which barred his discharge, either by the production of evidence or by showing that in a previous bankruptcy proceeding it has been conclusively adjudicated, as between him and the bankrupt, that the bankrupt had committed one of such offenses. If that adjudication had been proved, it would have taken the place of other evidence and have been final upon the parties to it. But nothing of the kind took place. Bluthenthal & Bickart intentionally remained away from the court, and allowed the discharge to be granted without objection.”
From this it appears to be required that the granting of the discharge under a second petition be resisted by objecting creditors with claims provable under a first petition. If so, the bankruptcy court must have authority in its order of discharge to limit the effect of the discharge and to except from its operation all debts provable under the former petition. In some cases the court has accomplished this by enjoining the bankrupt from applying for a discharge as to such debts. In re Pullian (D. C.) 171 Fed. 595; In re Kuffler, 168 Fed. 1021, 93 C. C. A. 671. In others, as in the present case, the order of discharge has been so drawn as to except from its operation debts provable under the first petition. Pollet v. Cosel. 179 Fed. 488, 103 C. C. A. 68, 30 F. R. A. (N. S.) 1164; In re Von Borries (D. C.) 168 Fed. 718; In re Westbrook (D. C.) 186 Fed. 414. If the District Court has authority to limit the discharge.so as to except from its operation debts of this character, it seems clear that it has authority to express the limitation and exception in the order granting the disc-barge, though the Supreme Court form of discharge contains no such exception. The more convenient practice, if permissible, is that adopted by the court below in this case, to which we adhere.
1 2] It is contended by the appellant that the appellee has estopped itself from disputing the application of the discharge to its claim by reason of having filed and proven its claim in the second proceeding. No dividend has been paid appellee or other creditors of the bankrupt, nor can any be paid, since the only asset scheduled by the bankrupt is a suit of clothes, which he claims and is entitled to as exempt. What effect as an estoppel, if any, the receipt of dividends by the objecting creditor, under the second petition, would have is not presented by the facts of this case. An estoppel is always predicated on some election resulting in benefit to the person estopped or detriment to the person in whose favor the estoppel operates. The filing and proving of the claim without the receipt or the expectation of receipt of a dividend can be of no benefit to the appellee and of no detriment to the bankrupt, and there is nothing in the doing of it on which to predicate an estoppel. This was expressly held in the case of In re Klby (D. C.) 157 Fed. 935. 16 Cyc. pp. 744-746 ; 2 Pomeroy Equity jurisprudence, § 805; .Bigelow on Estoppel, 644.
If the court below had no authority to incorporate in the order [38]*38granting the discharge the exception complained of, no injury can result therefrom to the bankrupt, for in that case the exception would be a nullity, leaving the discharge unconditional, and it could be pleaded with unimpaired effect in an action to enforce the appellee’s claim.
The order granting the discharge is affirmed.