170 F.2d 1 (10th Cir. 1948), 3625, Ginsberg v. Thomas

Docket Nº:3625.
Citation:170 F.2d 1
Party Name:GINSBERG v. THOMAS.
Case Date:September 09, 1948
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1

170 F.2d 1 (10th Cir. 1948)

GINSBERG

v.

THOMAS.

No. 3625.

United States Court of Appeals, Tenth Circuit.

September 9, 1948

Page 2

Thomas K. Hudson, of Denver, Colo., for appellant.

W. Richard Means, of Denver, Colo. (Albert S. Isbill, of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal from the judgment of the lower court denying appellant's motion to amend an order discharging a bankrupt entered March 26, 1936. The facts so far as material are simple and not in dispute. In 1931, Hubert Fletcher Thomas, the appellee, filed a bankruptcy proceeding in the District Court of the United States for the District of Colorado. Among the claims listed was the one now claimed by appellant, Charles Ginsberg. This claim was listed as follows:

'F. L. Kokrda Receiver of The Broadway National Bank of Denver, 1660 Stout Street, Denver, Colorado, unliquidated claim for damages on account of directors liability for loans in administration of Broadway National Bank, in sum of $526,060.91, now pending in the District Court of the United States within and for the District of Colorado, being complaint in Equity No. 9250.'

Thomas failed to apply for a discharge and on or about December 16, 1932, the bankruptcy proceedings were dismissed. Subsequent to that date, on August 20, 1935, he filed a second voluntary petition in bankruptcy in the same court. In this proceeding, he listed appellants' claim as follows:

'Charles Ginsberg, Symes Building, Denver, Colorado, assignee of judgment in favor of F. L. Kokrda, receiver of The Broadway National Bank of Denver, entered February 20, 1935, on account of directors liability, $82,578.03 and costs with interests from date of entry * * * $82,578.03.'

A timely application for a discharge was filed in this proceeding. Appellant received a copy of the application for the discharge. He made no appearance and entered no objections thereto. Thereafter, on or about March 25, 1936, a general discharge in bankruptcy was entered discharging appellant's claim, as well as other claims listed in the proceedings. No further steps with relation to this claim against appellee were taken by appellant until October 2, 1947, more than eleven years after the order of discharge was entered, when appellant filed a pleading in the District Court denominated 'Motion of Creditor to Amend Discharge.' In this motion he asked the court to modify its judgment of discharge to exclude therefrom the judgment of the receiver of the bank now claimed by appellant by assignment. He has appealed from the judgment of the court refusing to modify the order of discharge.

Appellant's position is that appellee was not entitled to a discharge of this debt in the second proceeding because it was the same debt as was listed in the first proceeding in the name of F. L. Kokrda, Receiver, as an unliquidated claim in the amount of $526,060.91. The rule is now well settled that if a debt is provable in a bankruptcy proceeding and no discharge thereof is obtained, such debt is nondischargeable in a subsequent proceeding. 1

Considerable attention is focused on the question whether Kokrda debt listed in the first proceeding was provable and whether...

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