235 F. 271 | S.D.N.Y. | 1916
(after stating the facts as above). It would be reasonable in this case to open the default of the objecting creditor, which undoubtedly arose through some misunderstanding between him and the bankrupt’s attorney about the time and place when .the bankrupt should appear for his examination. The bankrupt, however, insists that under section 15 this cannot be done. It is quite true that the objecting creditor does not bring himself within section 15. There is no fraud, and, if there were, the fraud was not discovered after the discharge was granted. The bare question is whether this court, once the discharge has been signed, is without power to vacate the same, although there has been a mistake or any other reason of equity why there had never been a trial upon the merits. I do not believe that section'15 means this. The term “revocation” means, I think, a final denial of the discharge, though once granted, not merely to vacate the discharge and leave the matter open for determination. I agree with Remington, § 2811. Indeed, the bankrupt has even been allowed to vacate his own discharge. In re McKee (D. C.) 165 Fed. 269.
I see no reason why this order should not be subject to the same equitable control as any other order of a court of equity, certainly when there has never been any disposal of the cause upon the merits. Judge Ray, in Re Upson (D. C.) 124 Fed. 980, and In re Walsh (D. C.) 213 Fed. 643, seéms to have, interpreted section 15 as covering a case of this sort, but the distinction suggested in Remington does not seem to have been brought to his attention, and until the matter is conclusively determined I prefer what seems to me the more equitable construction.
An order will be granted, vacating .the discharge and allowing the specifications as filed on the 26th of June to stand. The same will be referred to the special master.