275 F. 65 | S.D.N.Y. | 1921
(after stating the facts as above). Tlie question whether a bankrupt may be deprived of his discharge by neglect to press his petition to a hearing has, so far as I know, been adjudicated only three times. Judge Holt, in Re Lederer (D. C.) 125 Fed. 96, denied a discharge for that reason, and the Circuit Court of Appeals for the Eighth Circuit held the same way in Lindeke
At that time (1912) there was no rule of the District Court providing for the bringing on of petitions after they have been filed; but subsequently rule 10 (now rule 26) was passed, which, so far as relevant, reads as follows:
“In twenty days after petition for discharge shall have been filed with the referee, an order to show cause thereon shall be issued.”
The absence of such a rule was mentioned in Re Glasberg, and I think it fair to assume that it may have been the basis of the decision. At least there is no reason to suppose that the Circuit Court of Appeals would have disregarded such a rule, had one been in existence at that time. I therefore think that that case was not applicable, and it seems to me that the other two cases are controlling. It is to be noted that the rule mentioned does not in form impose any obligation on the bankrupt, but there has always been in the local rules, under “Authorized Charges for Disbursements and Expenses,” a provision that the referees may make certain charges for their indemnity, among which Nos. 1, 3, and 4 prescribe the amounts upon petitions for discharges. It was provided further that—
“Tbe estimated amount of items 1, 3 and 4 shall, in applications'for a discharge, be paid by the bankrupt on filing his petition for discharge.”
Therefore a duty was imposed upon the bankrupt under these rules of making payment of the indemnity in question, which, if he had performed it, would have automatically set in motion the procedure of the court. His failure was in every sense a default for a period of nearly three years, and it stands unexcused, except on the plea of poverty. But that plea will not serve either. Section 51a (2), being Comp. St. § 9635, provides for a petition in forma pauperis, which is further recognized in our present rule 2. The bankrupt under our rules is therefore charged with the duty, when he files his petition, either to pay the indemnity or to excuse it, as I have stated. These are conditions annexed to his right to a discharge.
The case, therefore, seems to me to be that the bankrupt has not performed those conditions upon which alone the petition could be treated as complete. Of course, if the rules are illegal, and the court has no right to require any indemnity (or a petition in forma pauperis in its stead), then it is true the bankrupt fulfilled all the necessary conditions. Such an illegality is not, however, suggested at bar, and I shall assume the rule to be valid. If so, I see no distinction between failing to file a petition at all, and filing it without satisfying those conditions on which alone any progress can be made upon it. The statute might, it is true, have required creditors to show some prejudice to dismiss a petition for discharge, filed more than 18 months after adjudication; but it has not done so. ■ It has put an absolute limitation upon the right, depend
The excuses tendered, assuming any are admissible, which I deny, are in the case at bar quite trivial.
Discharge denied.
