Adams v. McClendon

30 Ga. App. 559 | Ga. Ct. App. | 1923

Jenkins, P. J.

While in Pollet v. Cosel, 179 Fed. 488 (103 C. C. A. 68, 30 L. R. A. (N. S.), 1164), cited by counsel for the-plaintiff in error, the United States Court of Appeals of the first circuit held that the dismissal of a voluntary petition in bankruptcy for laches on the part of the bankrupt in prosecuting the proceedings was a bar to his discharge in subsequent proceedings from debts provable in the former one, the court, referring to a ruling of the United States Supreme Court that an actual refusal of a discharge was a conclusive adjudication as to the facts upon which it was based, said: “ Where there is only a mere dismissal for want of prosecution, it is so often held that parties are not fully estopped thereby that the language we have quoted does not necessarily apply here.” The court cited three cases from other circuit courts of appeals as supporting its decision: In re Fiegenbaum, 121 Fed. 69 (57 C. C. A. 409); Kuntz v. Young, 131 Fed. 719 (65 C. C. A. 477); In re Kuffler, 151 Fed. 12 (80 C. C. A. 508). In two of these cases it appears that the bankrupt’s application for a discharge in the previous proceeding had been filed and was actually or in effect refused, and in the other case it appears that the statutory limitation for filing the application in the prior proceeding had expired; and therefore the principle of res judicata applied, either by the prior express ruling, or in the latter case by necessary implication. So far as we have been able to discover, in all other Federal cases, where a discharge from debts scheduled in the prior proceeding was refused in the subsequent proceeding, it appears either that a previous ruling adverse to the bankrupt’s discharge had been made, or that he had permitted the statutory time for filing his application to lapse, so that the court had lost jurisdiction or -power to entertain such application. 1 Collier, Bkcy. (12th ed.), 345; In re Fahy (D. C.), 116 Fed. 239; In re Schwartz (D. C.), 248 Fed. 841; In re Pullian (D. C.), 171 Fed. 595; In re Bramlett (D. C.), 161 Fed. 588; 239 Fed. 578; In re Loughran (D. C.), 215 Fed. 271. See also Hunter v. Lissner, 1 Ga. App. 1, 3 (58 S. E. 54). In none of these cases save that of Pollet v. Cosel, supra, does it appear that the mere dismissal of a previous bankruptcy petition, where no application for a discharge had been filed and the statutory time therefor prior to the dismissal had not elapsed, was held to operate ipso facto as a bar to an application for discharge in a later proceeding. Upon principle that ruling appears unsound, especially in a case where, as here, less than 12 months time for filing the petition for discharge has elapsed, not only from the date of adjudication in the last proceeding, but also from the time of adjudication in the first. How and in what manner the dismissal of the bankrupt’s previous petition may affect his rights in his present application for a discharge, is a matter for determination by the bankrupt court; all that is here held being that, under the facts shown by the record, it does not appear that the bankrupt court must necessarily decline to grant a discharge as to the claim sued on.

Judgment reversed.

Stephens and Bell, JJ., concur.