188 F. 479 | N.D. Ala. | 1911
This matter comes on for hearing upon the application of the bankrupt for his discharge. The bankrupt was adjudicated on November 10, 1906. The case was closed by the referee June 7, 1907. On December 28, 1906, an application was filed by the bankrupt with the referee, to whom the case was referred, for
•'All petitions (for discharge) should be filed with the clerk. and not with the judge or referee” — -citing In re Sykes (D. C.) 6 Am. Banliri Rep. 264, 106 Fed. 660.
In the case of In re Pincus (D. C.) 17 Am. Bankr. Rep. 331, 147 Fed. 621, the court said:
“These bankrupts filed with the referee in charge, and about five months afror adjudication, the petition under review. No action by the court was taken thereon, until more than a year aftc-r adjudication, and the objecting creditors 'now contend that the filing with the referee was insufficient to confer jurisdiction and the petition should be dismissed as not having been preferred within the statutory year. It is true that the referee as ‘referee’ has no power to consider the petition. But within this district and by force of District Court Rule ii in bankruptcy the office of the referee is the office of the court.”
In this district no such rule is in force. The clerk’s office is the office of the bankrupt court in this district. Rule 3 of this district limits the jurisdiction of the referee over referred cases, as does the
The application should be denied for the additional reason that it is a pleading, required by General Order xxxi to “state concisely in accordance with the provisions of the act and the orders of the court the proceedings in the case and the acts of the bankrupt,” and therefore is a pleading setting up matters of fact, which section 18, subd. “c” requires to be verified. The case of In re Brown, 7 Am. Bankr. Rep. 252, 112 Fed. 49, 50 C. C. A. 118, decided by the Circuit Court of Appeals for this circuit, is in point. It is important that the bankrupt should be required to state under oath that he has surrendered all his property to his trustee and has complied with fully the act (Form 57 [89 Fed. Ivii, 32 C. C. A. lxxxi]) as a condition to obtaining his discharge, especially as his discharge follows as a matter of course and without the offer of proof of these facts by him, unless objecting creditors enter appearances and file specifications of objections.
The application for discharge is for these reasons denied at the cost of the bankrupt.
On Application for Rehearing.
In view of the fact that the application for discharge was filed in the office of the clerk before the expiration of 12 months from the date of the adjudication, the question as to whether it may be properly filed with the referee is not material. The safer practice would be to file it with the clerk, whose duty it would be to transmit it to the referee for him to proceed under District Court Rule No. 7. Both parties having impliedly consented to the course pursued in this case, by appearing before the referee and hearing the matter without objection either to the filing or the want of verification, the filing with the clerk thereafter and within the year, together with the acquiescence of the objecting creditor in proceeding under such an application, cures whatever infirmities may exist in it.
The order denying the discharge is revoked, and an order granting it will be entered.