138 F. 862 | M.D. Penn. | 1905
The bankrupt having applied for a discharge, and the case coming up for a hearing before the referee on objections thereto, the objecting creditors refused to proceed because the bankrupt was not in attendance. The referee, however, was of opinion that this was not necessary; and, not being convinced that any good would be accomplished by it (the bankrupt having been fully examined at the first meeting of creditors with “egard to the matters covered by the objections), and believing that advantage was merely being taken of the fact that the bankrupt had fled the country because of having to pay the costs in a criminal case, he declined to require it. To this the creditors except, and the case is now brought here for review.
Among the duties enjoined by the bankruptcy act on the bankrupt (section 7, Act July 1, 1898, c. 541, 30 Stat. 548 [U. S. Comp. St. 1901, p. 3424]) is that he “shall attend the first meeting of his creditors, if directed by the court or a judge thereof to do so, and the hearing upon his application for a discharge, if filed.” This apparently imposes upon him the absolute obligation to attend in the one instance, although not in the other, without an order; and, while there has been no express decision of the question, so far as I have been able to find, this is the accepted construction put upon it by the leading text-book writers upon the subject. Commenting upon this section of the act (this provision of it as well as others), it is said in Collier on Bankruptcy (5th Ed.) p. 103 :
“Four things should be noted: (a) The bankrupt is not obliged to attend the first or any other meeting of creditors, unless ordered to do so; (b) if his home or usual place of business is more than one hundred and fifty miles from the place of meeting, he cannot be required to attend, save for cause shown; (c) if ordered to attend a meeting other than in the place of his residence, he is entitled to actual expenses out of the estate; and (d) that, none of these limitations seeming to apply to a hearing on a discharge, he must attend such a hearing wherever it is, and at his own expense, éven though not ordered to do so.”
So in Loveland on Bankruptcy (2d Ed.) § 212, it is said:
“It is the duty of the bankrupt to attend the hearing upon his application for a discharge, if filed, without an order of court, or service of notice or process. He cannot object to attending on account of the distance, where the hearing is at the recognized place of holding court.”
While in Brandenburg on Bankruptcy (3d Ed.) t§ 210, this is assumed to be the effect of the statute, although there is no express deliverance with regard to it; it being observed that, where the bankrupt is dead, so that “it is impossible to comply with the requirement as to his personal attendance” at the hearing on his application for a discharge, the court or the referee may proceed notwithstanding his absence. The construction which is so adopted by these several authors is the natural and obvious one, and it is difficult to see how to escape it. The opposite construction is based upon the assumption that the qualifying words, “if directed by the court or a judge thereof to do so,” which appear in the clause in question, apply to the hearing on the application for a discharge, the same as to the first meeting of creditors. In re Parker, 1 Am. Bankr. Rep. 615, 618. But this is not the way it reads, nor
It follows that the bankrupt must attend before the referee at the further hearing upon his application for a discharge, on being given opportunity therefor, and that upon his failure to do so, the application must be dismissed. And it is so ordered.