93 F. 440 | S.D. Iowa | 1899
Certain creditors have filed herein what they term “specifications” of “the grounds of opposition” to granting discharge herein. The files show that all the merely modal, prerequisites to granting discharge have been fulfilled. Unless these “specifications” in opposition, etc., shall prevent, the bankrupt is en titled to his discharge. Section 14, par. b, provides that “the judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by parties in interest,” etc. General order 88 provides, “A creditor opposing the application of a bankrupt for his discharge, * * * shall enter his appearance in
The practice of the bankruptcy courts, as heretofore followed in the matter above under consideration, appears to have been substantially uniform.
Black, in his annotated volume on the present Bankruptcy Law, states the following (page 80):
Allegations in opposition to a discharge are not sufficient when they simply follow the words of the statute; they must he as exact as the specifications in an indictment; and no intendment will he made in favor of the pleader. In re Butterfield, 5 Biss. 120, Fed. Cas. No. 2,247; In re Hill, 2 Ben. 136, Fed. Cas. No. 6,482; In re Freeman, 4 Ben. 245, Fed. Cas. No. 5,082.
Collier, in his treatise on Bankruptcy, declares (page 138) that:
While the objections are not to he pleaded with the strictness of common-law pleading, yet it is necessary that the facts he alleged, and that such allegations be distinct, specific, and definite, so as to clearly inform the bankrupt what he is to disprove. If they are vague and general, the court will dismiss them, or compel the objecting party to he more definite. [Citing a number of cases.]
In re Graves, 24 Fed. 550, presented to Judge Coxe the point under consideration. In that case the “specification” he was considering was in the exact language of the statute. — in substance, that the bankrupt, being a merchant, “had not kept proper books of account.” The learned judge says:
The authorities appear to be numerous and uniform that, under a broad, indefinite allegation like the present, the creditor may prove that the bank-*443 rapt kept no books at all, or that he failed to keep any one of tiie books necessary for (ho transaction of the business in question. Having failed in this, however, he cannot enter into an examination of the hooks Themselves, for the purpose of showing that they were carelessly kept, or kept on a wrong principle. If such an issue is to be raised, the bankrupt must be advised of it by distinct, specific, and definite statements of pleading. In Condict’s Case, 19 N. B. R. 142, Fed. Cas. No. 3,094, the court says: “It has been the uniform practico under the bankrupt act to consider all specifications too vague and general which charge the offense in the words of the act. The particulars in which the bankrupt has offended should be so set forth that he may be apprised of (he precise matters wherein he is alleged to have transgressed.” In Frey’s Case, 9 Fed. 376, the court says: “The objection being, therefore, to the manner In which the hooks are kept, and to imperfections or omissions therein, general objections, like those above stated, are not sufficient. The particular irregularities or omissions must be pointed out in the speciiications, to entitle them to be considered.” [And numerous cases are cited.]
Tlie holding of Judge Coxe appears to be very favorable to the objecting creditor, in that it would permit an issue to be raised wherein the omission alleged is not specified. lío more favorable holding has been pointed out to me. But even under that holding the specifications in the pending case must be held insufficient, as being too vague, uncertain, indefinite, and as not specifying.
At the close of the extract from Collier appears the suggestion that the judge may compel the objecting party to be more definite. .. Doubtless, this refers to the case where the objecting creditor has attempted to specify, but has failed to push his specification sufficiently far into detail. Manifestly, the court would, in such a case, where the good, faith in the attempt of the creditor is manifest, permit amendment. But such amendment ought to be permitted only where there is manifest an attempt of the creditor to specify. In such a case tlie court may properly grant opportunity for the presentation of tlie specific facts which the objecting creditor claims to exist.
The conclusion is that the grounds, as alleged, do not justify an investigation thereof by the judge, and are not sufficient to arrest the granting of the discharge for which application is made. The nbieotions are overruled, and the discharge is granted.