In re Weisberg

• Citation: 253 F. 833
• Decision Date: 01 October 1918
• Docket Number: 2405.
• Parties: In re WEISBERG.
• Court: U.S. District Court — Eastern District of Michigan

253 F. 833

In re WEISBERG.

No. 2405.

United States District Court, E.D. Michigan, Southern Division.

October, 1918

Benjamin & Betzoldt, of Detroit, Mich., for petitioner.

C Lucian Bancroft, of Detroit, Mich., for respondent.

TUTTLE District Judge.

This is a petition by the bankrupt, asking that the respondent, one of his creditors, be punished for contempt of court in ignoring a discharge in bankruptcy granted to the bankrupt by this court, and garnishing certain money belonging to petitioner and on deposit in a bank, and praying that respondent be ordered to return such money to petitioner.

The petitioner was duly adjudicated a voluntary bankrupt herein in August, 1916. Among the debts owing by the bankrupt was an indebtedness to one Frank Majuchowsky, the respondent, on a judgment rendered by one of the justices of the peace for the city of Detroit against the bankrupt as indorser on a worthless check, amounting to $41.75. This debt, with the name and address of the creditor, was duly scheduled. It appears that the proper notices of the bankruptcy proceedings were mailed to respondent; but there is no proof or sworn statement that they or any of them were received by him, and he swears in his affidavit that he never received any of such notices, or knew of such bankruptcy proceedings. Respondent duly obtained his discharge from this court in November, 1916.

In June, 1917, respondent caused to be filed in the justice's court in which he had obtained the judgment mentioned an affidavit of garnishment under the state practice, showing the recovery by him of said judgment, and stating that he had not received payment thereof, and that the garnishee defendant, the Wayne County & Home Savings Bank, had in its hands, money belonging to the petitioner herein, and was indebted to said petitioner, in an amount equal to the sum due to respondent on such judgment. Thereupon, in accordance with the practice in the state court, the garnishee defendant paid to the said justice's court this amount, which was thereafter paid over by the court to respondent. No notice of these bankruptcy proceedings was given to said bank or justice of the peace prior to the receipt and payment of such money, nor was any such notice filed in the justice's court. It does not appear, nor is it claimed, that petitioner received notice of the garnishment proceedings, or had any knowledge thereof until after this money had been paid to the respondent. It was not necessary, under the state practice, that he should have received such notice; garnishment proceedings of this kind, based on judgment, being ex parte. It appears to be conceded that the claim of respondent against petitioner, represented by said judgment and scheduled as already indicated, was a provable debt, subject to discharge by the bankruptcy proceedings.

The question presented is whether the action of the respondent in collecting his judgment against the petitioner by these garnishment proceedings constituted, under all the circumstances, a contempt of this court, in view of the fact that the petitioner had previously obtained his discharge in bankruptcy herein. No case has been cited, and I have discovered none, involving precisely the same question. After careful consideration, however, of the situation and of the rights and duties of the parties in the premises, I am of the opinion that petitioner has not sustained the burden of showing that respondent has been guilty of the contempt of court alleged.

In the first place, the discharge in bankruptcy granted to petitioner did not automatically relieve him from even the provable debts previously owed by him and duly scheduled. It is true that such discharge afforded him a complete defense to an action brought to recover any such debt, but in order to avail himself thereof it would be necessary for him to...