Bluthenthal v. Jones

| Fla. | Jan 15, 1906

Hooker, J.,

(after stating the facts.) The only question here is one of law. The contention of the appellants Bluthenthal & Bickart is that because they participated in the bankruptcy proceeding in the United States Court in Georgia, in the year 1900, and proved their account against Jones in that proceeding, and resisted his discharge there, that the order of the United States District Judge refusing to grant him a discharge rendered their claim “res adjudAcata” and that as they did not participlate in the bankruptcy proceeding in the United States District Court of Florida in 1903, the order of the District Judge in the last proceeding, discharging Jones from his debts, did not apply to their claim or judgment. We have examined all the decisions referred to in the able briefs of the respective parties, but no one of these authorities presents facts which are analogous to the one at bar. Neither have we been able to find an analogous case in our library.' The case of Re Drisko, 2 Low. 430" court="D. Mass." date_filed="1875-09-15" href="https://app.midpage.ai/document/in-re-drisko-8630569?utm_source=webapp" opinion_id="8630569">2 Lowell 430, cited by appellants, turned largely upon the construction of the bankruptcy law in force in the year 1875, and there too the question of the effect of a previous refusal to discharge the bankrupt was raised in the second proceeding by a creditor, and in that second proceeding the. effect of the former action was adjudicated.

In the case of Kuntz v. Young, 131 Fed. Rep. 719, it was held that "a failure of the bankrupt to apply in due time for, or a refusal by the court to grant, a discharge from debts provable in proceedings under one petition in bankruptcy, renders the question of the right of the bankrupt to a discharge from those debts in a proceeding under a subsequent petition res adjudicata.” But in this case both petitions were filed in the same District Court and the question of the right to a discharge seems to have been raised by the report of the Trustee showing all the facts. The District Court itself passed on the question of the effect of the second petition, and dismissed it.

In the case of In re Fiegenbaum, 121 Fed. Rep. 69, the question of the bankrupt’s right to a discharge under a second petition, he having been denied a discharge in the first, was also raised in and determined by the court in which the second petition was pending.

In the case In re Hermann, 102 Fed. Rep. 753, the question presented was whether one who had been refused a discharge under the bankruptcy law of 1867, was debarred bjr the bankruptcy law of 1898, from obtaining a discharge under the last act, embracing debts proven against him under the first. The court held he was not barred. In this case also, the question of the effect of the discharge was raised by creditors in the United States District Court which was asked to grant the discharge. The Massachusetts cases turn somewhat on the insolvency laws of Massachusetts, and we think it unnecessary to review them at length.

It appears from all the decisions we have seen that the question here raised is one of res adjudicata; that is to say, whether when a debt was proved under the first bankruptcy proceeding, and a discharge refused in that proceeding, the right to a discharge from this debt was thereby settled and adjudicated, and could not be affected by the second proceeding. We are of opinion that such a question was one which the creditor himself should have raised in the second proceeding in bankruptcy in the United States District Court, and that court then having jurisdiction of the whole matter should have been requested to adjudicate the effect of the proceeding and of the general discharge which it granted. It will be observed that the record does not show why the discharge was refused in the first proceeding, nor does it show that the debt in this case comes within any of the exceptions of section 17 of the Bankrupt Act approved July 1st, 1898; nor is it contended here that it does. Bluthenthal & Bickart were notified of the last proceeding in bankruptcy, refused to participate in any way in it,, and to raise the question of res adjudicata in the said proceeding. It is true that a discharge in bankruptcy is general in its terms, and its effect is generally left to be determined by the court where it is pleaded. But we do not (think that in a case like the one at bar it would be prudent or proper for this court to do more, in giving effect to a discharge, than to determine • whether the debt was embraced in the exceptions of the statute, leaving all other questions to be determined by the Federal courts, where they properly belong.

The decree appealed from is affirmed at the cost of appellants.

Taylor and Parki-iill, JJ., concur. Cockrell and Whitfield,’JJ., concur in the opinion. Shackleford, C. J. disqualified.