107 F.2d 742 | 2d Cir. | 1939
The question presented by this appeal is whether involuntary proceedings in bankruptcy may be brought against a person who has previously been adjudged insane by a state court of competent jurisdiction. The. controversy is between two creditors of Pauline Evanishyn. She was declared insane and committed to the Matteawan State Hospital by order of the county court of Westchester County, New York, entered on March 27, 1939, in proceedings begun on March 23. Prior thereto, on January 16, 1939, a creditor named Baron had obtained judgment against her in a state court action and in supplementary proceedings had had David J. Wolper appointed receiver of her property. Subsequently, on April 6, 1939, another creditor, the present appellee, filed an involuntary petition in bankruptcy alleging as acts of bankruptcy the failure to discharge the lien of the Baron judgment and the appointment of the receiver in supplementary proceedings. Before the bankrupt through her guardian ad litem was required to answer the petition, the said receiver moved to dismiss the proceedings on the ground that the bankruptcy court lacked jurisdiction. His motion having been denied, this appeal was taken by the receiver.
The Bankruptcy Act contains but one reference to insanity. Section 8 provides that the death or insanity of a bankrupt shall not abate the proceedings, but the same shall be conducted and concluded in the same manner, so far as possible, as though he had not died or become insane. 11 U.S.C.A. § 26. From this provision the
For the foregoing reasons we are convinced that the district court was correct in overruling the appellant’s objection to its jurisdiction. In re Holmes, D.C., 13 F.2d 653, and In re Tobin, D.C., 24 F.Supp. 825, are directly in point. Although there has been some divergence of judicial opinion, the better reasoned discussions of courts and commentators are in accord with the views we have expressed. See In re Kehler, 2 Cir., 159 F. 55; In re Marvin, Fed.Cas.No.9,178; In re Pratt, Fed.Cas. No.11,371; In re Weitzel, Fed.Cas.No. 17,365; In re Funk, D.C., 101 F. 244; In re Eisenberg, D.C., 117 F. 786; In re Clinton, D.C., 41 F.2d 749; Anon., 13 Ves.Jr. 590; In re Lee, 23 Ch.D. 216; In re James, 12 Q.B.D. 332; Saunders v. Mitchell, 61 Miss. 321; Gilbert’s Collier on Bankruptcy, 4th Ed., §§ 202, 211; Remington, Bankruptcy, 4th Ed., § 99; Ringwood’s Principles of Bankruptcy, 14th Ed., p. 20; Zollmann, Persons of Abnormal Status as Bankrupts, 10 Columbia L.Rev. 221, 235; 16 Harvard L.Rev. 56; 29 Mich.L.Rev. 243 ; 25 Ill.L.Rev. 934. Whether a voluntary petition may be filed by an incompetent’s guardian need not be and is not decided at the present time.
Order affirmed.