96 F. 830 | D. Wash. | 1899
The defendant’s answer to the original petition admitted the giving of a mortgage as security to one of its creditors, hut denied insolvency, and this issue has been tried and fully adjudicated as between all parties who were before the court at the time. As to them the judgment is final and conclusive, unless it be reversed for error or impeached for fraud; but strangers to the record are not estopped, and they cannot be hindered by it from relitigating the same questions in any lawful proceeding. The fifty-eighth section of the bankruptcy law provides that “creditors shall have at least ten days’ notice by mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing, of * * (8) the proposed dismissal of the proceedings”; and the fifty-ninth section provides that “a voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors.” It is my opinion that these provisions of the law relate to dismissals which in effect withdraw the cases without submission to the court for its decision upon the merits, and there appears to be no requirement of notice, to creditors who have not appeared, of trials or hearings in involuntary cases; but, if the law "does require notice to all creditors of hearings upon the merits, still the rendering of a final judgment without notice to the creditors would be an irregularity or error, the effect of which would be to make the judgment voidable or reversible as to parties to the record, and void as to others. In this case the original petiiioners and the defendant have by their opposition to the petition of the interveners waived all their rights to assail the judgment, and it is contrary to good practice to permit new parties whose rights are in no way affected to come in now to disturb it. These in-terveners are at liberty to commence a new and independent proceeding for the assertion of their rights, and this judgment cannot be pleaded against them, for the reason that, as they were not notified, the court did not have jurisdiction to render a judgment binding them.
Tiie fifty-ninth section gives to creditors, other than the original petitioners, the right to “at any time enter their appearance and join in the petition, or file an answer and be beard in opposition to the prayer of the petition.” This provision must necessarily be construed to give the right to join in the petition only during the pendency of the proceedings. There is no right given to other creditors to come in and take the conduct of a case out of the hands of the original petitioners, and it cannot reasonably be presumed that congress intended to authorize different creditors to come in successively and retry issues which have been decided, and in that way make the pendency of involuntary cases perpetual.
It is insisted lliat, unless this case can be reopened, the interven-ers will be prejudiced, because the lapse of time since the giving of the mortgage which was specified in the original petition as an act of bankruptcy will prevent any attack upon that transaction in a new proceeding, and the preference given to the mortgagee cannot be
I consider that tbe demurrers are out of place. The objections to tbe petition should have been presented by a motion to strike it from tbe files. However, tbe objections to the petition are necessarily fatal, in whatever way they may be urged, and therefore tbe demurrers are sustained.
