202 F. 266 | D.S.D. | 1912
The bankrupt’s voluntary petition to be adjudged a bankrupt was filed August 24, 1911. From an examination of this petition it appears that in Schedule B3 attached thereto, it is stated that she had no unliquidated claims of any nature; and it further appears that she claimed in said petition to be possessed of no property whatever.
■No trustee was appointed, and no claims were filed against her estate, and thereafter,,on the.9th day of October, 1911, the bankrupt filed petition for her discharge. Notice was duly given, and thereafter, on the 4th day of December, 1911, said bankrupt procured her discharge, which was duly entered upon that date.
On the 18th day of November, 1912, Ralph McLean, the petitioner herein, filed his petition as one of the creditors of said bankrupt, whereby he petitioned for a revocation of the said order of discharge, in which petition he sets forth, in substance, the date of the filing of the petition to be adjudged a bankrupt, the statement, in substance, of the contents of said petition with reference to the property of the bankrupt; that among her creditors she listed in Schedule Á3 to the petition a judgment for $108.18, dated April 2, 1901; that such judgment existed, had never been reversed or satisfied, and that the petitioner is the owner of the same; that the petition in bankruptcy was referred to the referee, and that on the 4th day of September, 1911, the bankrupt was by said referee duly adjudged and declared such; that on the 9th day of October, 1911, she filed her petition for a full discharge from all debts provable against her estate, and in said petition made oath that she had not done, or suffered or procured to- be done, or been a party to, any act, matter, or thing specified in said acts as a ground for withholding her discharge thereunder, or for revoking the same if granted, and particularly that she had not committed any offense punishable by imprisonment, as in said acts provided; that thereafter, upon notice being given on the 4th day of December, 1911, said bankrupt procured her discharge; that the judgment owned by the petitioner was for a debt incurred by the bankrupt in the purchase of farm machinery, and was rendered on a note given for the purchase price thereof; that it was thus a debt provable against the estate of said bankrupt, under the acts of Congress relating-to bankruptcy; that the petitioner or Sayller & Shoemaker, who at that time owned the judgment and thereafter assigned it to petitioner, never either of them proved said debt against the bankrupt estate, and no person listed as a creditor did prove a claim against the estate of the bankrupt, nor was any trustee ever appointed, and said, estate has never been closed; that the judgment of the plaintiff is not a lien upon the real property of the' bankrupt or any interest she may have in real property in the state of Iowa, for the reasons stated in the petition, and all remedy thereon is cut off by .the bankrupt’s discharge; that on the 15th day of October, 1912, the bankrupt, in an action
The petitioner also averred that if the bankrupt’s allegations in said pleadings be true her discharge should be revoked and set aside for the fraud involved in concealing the existence of said assets from the bankruptcy court.
It further alleges, if said allegations be true, the bankrupt had committed an offense punishable by imprisonment, as by said acts provided, having made a sworn oath in her said petition and in the schedules attached thereto and in her petition for discharge; that said Sayller & Shoemaker, who assigned said judgment to petitioner, did not prove their debt against the bankrupt’s estate, because they were informed and believed that the bankrupt had sworn in her petition that she had no assets whatever; wherefore petitioner prayed the discharge of said bankrupt be revoked and set aside.
Thereupon an order to show cause was issued, fixing a day for her examination touching the matters therein referred to, and the same was duly served upon the bankrupt. Thereafter the bankrupt appeared with her attorneys and the petitioner appeared by his counsel, and in the absence of the judge of this court the examination of the said bankrupt was, by stipulation, taken before Anna Jost and transcribed by her; and the rights of the petitioner herein are submitted upon the written evidence of the bankrupt, so taken, the pleadings and a stipulation filed.
“Tlie judge may, upon tlie application of parties in interest, wlio have not been guilty of undue laches, filed at any time within one year after discharge shall have been granted, revoke it upon a trial, if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of tlie fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge.”
There is no allegation in the petition filed herein with reference to the lack of laches of the petitioner.
It is questionable whether there is an allegation in this petition that the bankrupt has any interest in the property referred to in the petition.
I am of the opinion that this section of the law requires that the “knowledge of the fr’aud has come to the petitioner since the granting of the discharge,” and that it is essential, and is jurisdictional. Note in Re Marionneaux’s Case, Fed. Cas. No. 9,088.
In each and every one of the foregoing particulars the burden of proof is -upon the petitioner, and every requirement of this statute is absolutely essential to be proven. In re Mauzy (D. C.) 163 Fed. 900.
There is absolutely nothing in the record submitted to me upon this hearing that would justify a finding upon either of the essentials above numbered 2 and 5. And in this state of the record I do not consider it necessary to make a finding with reference to No. 6.
In every one of the particulars above numbered, I repeat, the burden of proof is upon the petitioner, and every requirement of the statute is absolutely essential to the power of the court to grant the relief prayed for. All these conditions must exist. In re Upson (D. C.) 124 Fed. 980. The purpose of this limitation is to restrict this process to those frauds which shall be discovered after the discharge. Collier on Bankruptcy, 299. And the grounds on which the application rests must be strictly pleaded. In re McIntyre, Fed. Cas. No. 8,823; Lathrop v. Stewart, 6 McLean, 630, Fed. Cas. No. 8,112. Allegations should be made showing that knowledge of the facts constituting grounds for the revocation came to the petitioners since the granting of the discharge. In re Oliver (D. C.) 133 Fed. 832.
It has been said that the moving creditor in a proceeding upon a petition of this character, under this section of the statute, should con
The record is entirely silent, both in the pleadings and proof, upon the material issues above set forth; and I am therefore of the opinion that I have no jurisdiction to enter affirmative findings-upon such issues. There is therefore nothing here to sustain the petitioner’s right to the order prayed for, and it should be denied.
Let an order be entered denying the relief demanded by the petitioner.