130 Wis. 412 | Wis. | 1907
The errors complained of on this appeal may he classified under two heads: Eirst, whether the court erred in directing a verdict for plaintiff; and, second, whether the bankruptcy proceedings constituted a defense to the notes in suit.
1. There is a sharp conflict in the evidence as to whether or not the appellant promised, after the bankruptcy proceedings, to pay the notes, the respondent and his attorney testifying that such promise was made. The appellant flatly denies such promise. So whether or not a promise was made to pay the notes, as contended by plaintiff, was clearly a question for the jury. It is therefore obvious that the court below must have directed a verdict upon the ground that the alleged bankruptcy proceedings constituted no defense. This seems clear from a remark of the trial judge appearing in the rec-. ord. It is very clear that, if the bankruptcy proceedings were a defense, the court erred in directing a verdict for the plaintiff upon the conflicting testimony. This brings us to a consideration of the question of the effect of the bankruptcy proceedings, and whether error was committed in holding that such proceedings constituted no defense.
Tbe respondent attacks tbe bankruptcy proceedings substantially upon tbe following grounds: (1) That tbe petition In bankruptcy is so jurisdictionally defective that no valid discharge could be granted; (2) that tbe indebtedness of appellant to respondent was never scheduled; (3) that no notice that appellant bad been adjudged a bankrupt and of tbe first meeting of creditors was given by tbe referee or clerk; .(4) that no copy of petition asking for discharge of appellant, and tbe order based thereon, were sent to or received by respondent; (5) that appellant signed and swore to bis petition 'before bis attorney in bankruptcy.
2. But, while the order of discharge cannot be attacked, a more serious question arises as to whether the debt of the respondent sued upon was discharged by the bankruptcy proceedings. Under the bankruptcy law of 1867 this court held, in harmony with the general current of authority,.that a debt was discharged even though not scheduled. Thomas v. Jones, supra; Osborn v. Dobrinz, supra. But it will be seen that under the act of 1867 debts not scheduled Avcrc not excepted from the operation of discharge, while under the Bankruptcy Act of 1898 they are. Sec. 17 of the Bankruptcy Act of 1898 provides that a discharge in bankruptcy “shall release a bankrupt from all of his provable debts, except such as . . . have not been duly scheduled. . . .” This provision is a marked departure from former bankruptcy acts, and decisions under such acts, to the effect that scheduling was not necessary in order to bring the debt within the order of discharge. The words of the present act, however, are plain and unambiguous, and there can be no doubt that they mean what they say; and, if so, unless the debt is duly scheduled in time for proof and allowance, or the creditor had notice or actual knowledge of the proceedings in bankruptcy, it is not affected by the discharge. The evidence shows that the respondent had no notice or actual knoAvledge of the bankruptcy proceedings, and therefore, if the debt was not duly scheduled, it is not affected by the bankruptcy proceedings. Sec. 17, Bankr. Act 1898; Collier, Bankr. (5th ed.) 214.
In Liesum v. Kraus, supra, the creditor’s name was George liesum and was scheduled “George Liesman,” and it was held that the debt was not discharged because the name was not properly entered in the schedule. In Haack v. Theise, supra, the name of the creditor J ames Ha,ack was scheduled “ James Haack and wife,” and ditto marks were used to indicate residence, and the court held that the debt was not duly scheduled. The court said:
“These features of the present act, when contrasted with the provisions of preceding acts, indicate a legislative intent that greater strictness shall prevail in notifying the creditor of the various proceedings in bankruptcy.”
In Columbia Bank v. Birkett, 174 N. Y. 112, 66 N. E. 652, 9 Am. B. R. 481 (affirmed in 195 U. S. 345, 25 Sup. Ct. 38), the court said:
“In my opinion there are features in the present bankruptcy ’act which differentiate it from preceding acts, and which indicate a legislative intent that greater strictness shall prevail in notifying the creditor of the various proceedings in bankruptcy.”
Subd. 8, sec. 7, of the Bankruptcy Act of 1898 [Act July 1, 1898, ch. 541, 30 U. S. Stats. at Large, 548; U. S. Comp.
By the Oourt. — Judgment affirmed.