In re Levin

U.S. Circuit Court for the Northern District of Illnois

In re Levin

15 F. Cas. 421, 7 Biss. 231, 14 Nat. Bank. Reg. 385, 1876 U.S. App. LEXIS 1749

CourtU.S. Circuit Court for the Northern District of Illnois

DecidedJuly 12, 1876

StatusPublished

Cited by1 cases

This text of 15 F. Cas. 421 (In re Levin) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the Northern District of Illnois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Levin, 15 F. Cas. 421, 7 Biss. 231, 14 Nat. Bank. Reg. 385, 1876 U.S. App. LEXIS 1749 (circtndil 1876).

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Opinion

DRUMMOND, Circuit Judge.

The 24th rule in bankruptcy requires that any creditor opposing the discharge of the bankrupt shall enter his appearance in opposition thereto, on the day when the creditors are required to show cause; and shall file his specification of the ground of opposition in writing within ten days thereafter, unless the time shall be enlarged by the district court. More than ten days had elapsed from the 23th day of March before Hubbard asked leave to file specifications, and his appearance had not been entered on that day, as strictly speaking it should have been.

It was claimed on the part of the bankrupt that the rule is absolute in its terms, and that if ten days had elapsed before the filing of specifications or before application had been made for an enlargement of the time, the power of the district court to exercise the discretion therein referred to had ceased to exist; and such is claimed to be the opinion of the court in some cases cited. But this is too narrow a construction of the rule. The district court had the discretion to enlarge the time as well after the expiration of the time as before. In equity, when a discretion is given to the court, it has been uniformly exercised as well after as before the time designated, and in the present ease there was no reason why this rule should not be followed.

[In this case, the bankrupt had not been discharged. It was competent for the district court, under the circumstances, to enlarge the time in which appearance and opposition to discharge by specifications might be filed. There is no complaint made against the exercise of its discretion in the decision made by the court, but the claim is that it had no authority to extend the time. For aught that appears, the district court had good reasons for enlarging the time for filing appearance and specifications.]²

The demurrer to the petition is sustained, and the order of the district court affirmed.

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DRUMMOND, Circuit Judge.

The 24th rule in bankruptcy requires that any creditor opposing the discharge of the bankrupt shall enter his appearance in opposition thereto, on the day when the creditors are required to show cause; and shall file his specification of the ground of opposition in writing within ten days thereafter, unless the time shall be enlarged by the district court. More than ten days had elapsed from the 23th day of March before Hubbard asked leave to file specifications, and his appearance had not been entered on that day, as strictly speaking it should have been.

It was claimed on the part of the bankrupt that the rule is absolute in its terms, and that if ten days had elapsed before the filing of specifications or before application had been made for an enlargement of the time, the power of the district court to exercise the discretion therein referred to had ceased to exist; and such is claimed to be the opinion of the court in some cases cited. But this is too narrow a construction of the rule. The district court had the discretion to enlarge the time as well after the expiration of the time as before. In equity, when a discretion is given to the court, it has been uniformly exercised as well after as before the time designated, and in the present ease there was no reason why this rule should not be followed.

[In this case, the bankrupt had not been discharged. It was competent for the district court, under the circumstances, to enlarge the time in which appearance and opposition to discharge by specifications might be filed. There is no complaint made against the exercise of its discretion in the decision made by the court, but the claim is that it had no authority to extend the time. For aught that appears, the district court had good reasons for enlarging the time for filing appearance and specifications.]²

The demurrer to the petition is sustained, and the order of the district court affirmed.

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Bluebook (online)

15 F. Cas. 421, 7 Biss. 231, 14 Nat. Bank. Reg. 385, 1876 U.S. App. LEXIS 1749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-levin-circtndil-1876.

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