Goodman v. Curtis
| Decision Date | 09 November 1909 |
| Docket Number | 1,889. |
| Parties | GOODMAN v. CURTIS. In re GOODMAN. |
| Court | U.S. Court of Appeals — Fifth Circuit |
The referee in bankruptcy in charge of the proceedings certified to the District Judge as follows:
That on May 25, 1908, said bankrupt filed his voluntary petition in bankruptcy containing schedules of assets and liabilities. No reference was made in the petition or schedules to a claim of exemptions by the bankrupt except in the petition, which was a printed one, and was in the approved form and contained the statement that the bankrupt 'is willing to surrender all his property for the benefit of his creditors except such as is exempt by law. ' An adjudication of bankruptcy was regularly made on the date of the filing of the petition, and on June 24, 1909, a trustee was regularly appointed for said bankrupt's estate. On July 7, 1908, bankrupt filed a petition asking for leave to amend his petition and schedules by filing a claim of exemptions claiming as exempt $1,000 worth of his assets, and this petition was duly heard evidence was taken, and an order made denying the petition and refusing leave to amend.
On the hearing of the petition, bankrupt and J. D. Acuff, Esq., were each examined as witnesses, and testified, in substance, that a few days before the petition in bankruptcy was filed bankrupt employed Acuff, who was an attorney, to file a petition in bankruptcy for him, stating to Acuff at the time that he desired to claim $1,000 worth of his property as exempt, and that Acuff advised bankrupt that it was not necessary that the claim of exemptions should be made or filed at the time the petition was filed, and that the proper practice was that the exemptions should be claimed after the appointment of a trustee; that the advice was given by Acuff in good faith and that bankrupt relied on same; that Acuff then prepared the petition in bankruptcy and schedules accompanying the same, and on his advice bankrupt signed them; that bankrupt had always since the filing of the petition expressed the intention of claiming his exemptions and had always intended to claim them.
This was all the evidence offered on said hearing, except claims filed and allowed including notes for $1,100, in which bankrupt had waived his exemptions and other nonwaiver claims.
The question presented on this review is whether a voluntary bankrupt by failing to file with his petition and schedules a claim to such exemptions as he may desire, as required by section 7 of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 548 (U.S. Comp. St. 1901, p. 3424)), waived his right to exemptions, notwithstanding he may have intended to claim exemptions and his omission to file the claim was due to a mistake of his attorney.
The District Judge approved and confirmed the ruling of the referee.
George Huddleston, for petitioner.
J. J Curtis, for respondent.
Before PARDEE, Circuit Judge, and JONES and FOSTER, District Judges.
PARDEE Circuit Judge (after stating the facts as above).
By the second section of the bankruptcy act of 1898, the bankruptcy court is given jurisdiction, among other things, (11) 'to determine all claims of bankrupts to their exemptions,' and by the sixth section it is provided:
'This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition.'
By the seventh section of the same act it is made the duty of the bankrupt, among other things, (8) to 'prepare, make oath to, and file in court within ten days, unless further time is granted, after the adjudication, if an involuntary bankrupt and with the petition, if a voluntary bankrupt, a schedule of his property, showing * * * and a claim for such exemptions as he may be entitled to, all in triplicate, one copy of each for the clerk, one for the referee, and one for the...
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