12 N.J. Misc. 785 | N.J. | 1934
This suit was submitted to the court without a jury, by consent, at the Monmouth Circuit. The action is based on a promissory note, dated January 16th, 1931, for $2,750, made by the defendant metal corporation, endorsed by defendant Feldman, and payable three months after date. It appears that the amount was reduced by payments to $1,700, the last of which was made on September 29th, 1931. No answer was filed by the corporation to the suit, but defendant Feldman, in an answer filed denied liability as an endorse!' by reason of Ms discharge in bankruptcy in the United States District Court for the district of New Jersey, on August 17th, 1931, from all debts due and owing by him on April 27th, 1931, the date of the petition, and in which lie scheduled, among Ms debts, the note in suit as a liability, and which had apparently fallen due on April 16th, 1931, and had not been renewed. Plaintiff’s reply to this answer was that defendant could not plead the discharge of
“The judge shall hear the application for a discharge and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest, at such time as will give the trustee or parties in interest a reasonable opportunity to be fully heard; and investigate the merits of the application and discharge the appellant, unless he (5) has been granted a discharge in bankruptcy within six years.”
Since the facts were admitted, the sole question argued at the trial of the present suit was whether defendant’s second discharge, which was within six years of the first, could be collaterally attacked. It was conceded on the argument that where a court of general jurisdiction has jurisdiction of the subject-matter and has acquired jurisdiction over the person of the defendant, its judgment is invincible against collateral attack.
It was urged, however, in behalf of plaintiff that if any judge or referee in the United States District Court attempts to supersede the power given by the Bankruptcy act itself, he is without jurisdiction and any decree or order given by him may be attacked collaterally or impeached in any court of any state wherein such order or decree might be pleaded; reliance being had on In re Fahy, 116 Fed. Rep. 239, construing section 14-A of the act, limiting the right of the bankrupt to apply for a discharge to eighteen months subsequent to adjudication, and in which it was said that the power and right to grant a discharge effectual to bar the enforcement of debts due conferred by statute is governed by the limitations found in the statute, and unless it is petitioned within the time fixed, the court of bankruptcy is without power and jurisdiction to grant the discharge, but if it yields to equitable considerations and should grant the discharge, such discharge could be impeached before any court wherein it might be pleaded as a bar to a claim, on the ground of want of jurisdiction to entertain the petition for discharge.
In Lippincolt v. Godfrey, 103 N. J. L. 407; 136 Atl. Rep. 407, it was said that where a court has jurisdiction to order the entry of judgment, and there were procedural errors in the steps taken to that end, such judgment is only properly subject to attack by a motion to vacate the same in the court where such judgment was entered, or by appeal therefrom, and cannot be questioned in a collateral manner. Citing Plume v. Howard Savings Institution, 46 N. J. L. 211. See, also, In re Leupp, 108 N. J. Eq. 49, 58 et seq.; 153 Atl. Rep. 842. The interesting question whether the apparently improper second discharge in bankruptcy can still be annulled, because improvidently entered, is suggested in the discussion in In re McKee, 165 Fed. Rep. 269. In any event, it seems clear that plaintiff cannot be permitted to collaterally attack defendant’s discharge in the present suit. The result is that judgment must be entered in favor of defendant and against plaintiff.