9 F.2d 534 | 2d Cir. | 1925
(after stating the facts as above).
Bankruptcy Act, § 14a (Comp. St. § 9598), provides that a bankrupt within “the next twelve months subsequent” to' adjudication may apply for a discharge, and then continues thus:
“If it shall he made to appear to the judge that the bankrupt was unavoidably prevented from filing it [i. e., his petition for discharge] within such time [i. e., said 'next twelve months’], it may be filed within, but not after, the expiration of the next six months.”
The question at bar is whether this bankrupt brought himself within the provisions of this section of the act, properly construed.
It has been repeatedly held, and we think correctly, that an application for the six months’ extension is addressed to judicial discretion. It is recognized as true that what constitutes “unavoidable prevention” is a question that cannot be answered as certainly, nor be demonstrated as infallibly, as an arithmetical problem. In re Fritz (D. C.) 173 F. 560; In re Chase (D. C.) 186 F. 408; In re Churchill (D. C.) 197 F. 111. But an abuse of discretion may itself constitute error of law, and it is urged that what was done here constituted such abuse.
When used in its original sense of anticipation, to “prevent” nearly always suggests that some one is the object of prevention; but, when used in the usual modem sense of hindrance or preclusion, the word always means that some other entity is preventing action by the one prevented. In the act the word is, of course, used in the ordinary modem way, and we must hold that, when a bankrupt is “prevented” from applying for discharge, the hindrance or preclusion is a force outside himself, operating upon him; he cannot be prevented by his own disinclination to act.
A result that is “unavoidable” need not be absolutely inescapable; yet it is a very strong word, and such limitations as Maulé, J., suggested for the possibility of retrieving a shilling from the Thames are about all that can ho suggested. Result is that there must bo a most compelling outside force, precluding a man by hypothesis honest and diligent from filing his petition, before any bankrupt can assert that he was “unavoidably prevented”; and we take judicial notice of the fact that drafting and filing a petition for discharge is a simple, short, and inexpensive affair.
Some reported cases either hold it a duty, or excuse an inclination to bo lax in the interpretation of the section at bar, on the ground that the whole act manifests congressional intention to favor honest debtors. In re Jacobs, 241 F. 620, 154 C. C. A. 378; In
We agree that a hard and fast definition of unavoidable prevention is not desirable, even if possible; but we insist on the necessity of external compulsion being an element in the excusing preclusion. Thus poverty and sickness, extreme and of long continuance have rightly been held to meet the test (In re Casey [D. C.] 195 F. 322), so would an error in the court clerk’s office (In re Swain [D. C.] 243 F. 781), and the same result has followed from reliance on an unreliable attorney who let the twelve months go by unheeded (In re Waller, 249 F. 187, 16 C. C. A. 223). These decisions are illustrative of prevention, as an outside influence ; they also illustrate how variably the potency of the “unavoidably” can be estimated.
In re Vaine (D. C.) 186 F. 535, is a good illustration of denying extension, though any discharge applied for within 12 months could only be itself denied, because 6 years had not elapsed from an earlier discharge in voluntary proceedings. Yet, as was properly held, this earlier discharge was the. bankrupt’s own doing, and could not constitute prevention within the statute.
Turning, now, to the facts shown by this bankrupt, it is especially clear that he does not even assert as a conclusion that anything “prevented” action during the whole year of the statute; the nearest approach to' it is his attorney’s illness for some months, while, ^s to “unavoidably,” there is no pretense- of it.
The real reason for the application is plain enough, from parts of the petition not heretofore alluded to. It is alleged, with evident truth, that MaeLauchlan expected a bitter contest with his creditors over his right to a discharge; he had had two litigations with them, or some of them, already, and he wanted time wherein to gird up his loins for another struggle over the discharge. This is a perfect illustration of a bad reason for such an order as this.
The practice pursued in this matter is bad. The petition should have been formally in the name of the creditor; but, as neither side has referred to the matter in brief or argument, we have considered the merits, and merely point out that this record is not a precedent procedurally.
Order reversed with costs.
