164 F.2d 243 | 5th Cir. | 1947
The appeal is from a judgment which sustained the report of a special master and in accordance therewith denied motions to reopen and reinstate a case in bankruptcy known as No. 1864, brought on July 26, 1939, by J. S. Garlington and wife as farmer-debtors for relief under Section 75, 11 U.S.C.A. § 203; and also dismissed a later case filed by them under Section 75 on April 15, 1943, known as No. 1932.
1. This is the plain meaning of our former opinion. The Case No. 1864 was dismissed for failure to prosecute it during more than the three years which Section 75, sub. s, allows for rehabilitation. We certainly did not mean that the time could be extended three more years by refiling the petition, but only that discharge from dischargeable debts could still be had by a new ordinary bankruptcy proceeding. In April, 1943, the Garlingtons were not farmers and could not apply for relief under Section 75. The revoking of the order allowing the filing and the dismissal of this new proceeding, which itself had not been prosecuted for another three years, was proper.
2. The Garlingtons on Jan. 26, 1946, filed an elaborate motion to set aside the dismissal on March 2, 1943, of Case No. • 1864, and to reopen and reinstate it and to set aside certain orders which were made in that case before its dismissal, and to order administration under Section 75, sub. s, to proceed; and also that the mortgage foreclosures in the State courts and the judgments on them be held void.
The judgment of dismissal of March 2, 1943, is the one affirmed by this court. Probably it could not be set aside by the district court without leave from this court. But if we had been asked to permit this, we should refuse because the motion is without merit. We have held the dismissal was justified because appellants had not prosecuted for three years the remedy offered them by Subsection s. They allowed nearly three more years to pass in similar inaction. If Subsection s could now be put to work, a third period of three years would be involved. It would be an abuse of this remedy to permit this. The lands have been sold under foreclosure in the State courts, and some of them at the instance of the Garlingtons through the bankruptcy court. They cannot well be recalled. Any supposed equitable right to do so is barred bylaches, and there is no longer any right to proceed under Subsection s. Case No. 1864 may not be reinstated.
The motion made by certain creditors to the same effect as that of the Garlingtons needs no separate discussion.
3. The mortgagee, Wasson, having litigated with the Garlingtons not only in bankruptcy, but also in the State courts, the latter litigation terminating in Garlington
The judgment of the district court is affirmed.