Herschman v. Bolster
| Decision Date | 12 January 1915 |
| Citation | 107 N.E. 543,220 Mass. 137 |
| Parties | HERSCHMAN v. BOLSTER et al; In re FEINBERG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Mark M. Horblit, Jacob Wasserman, and Horblit & Wasserman, all of Boston, for petitioner Feinberg.
Clarence F. Eldredge and Harold Caverly, both of Boston, for petitioner Herschman.
Jas. P Magenis, John Wentworth, and Thos. H. Bilodeau, all of Boston, for respondents State Bank of New York and Justices of Municipal Court of City of Boston.
The petitioners, having effected a composition with their creditors, were released from all provable debts. Bankr. Act 1898, §§ 1(12), 12, and section 14, as amended by Act Feb. 5 1903, and Act June 25, 1910; Turner v. Hudson, 105 Me. 476, 75 A. 45, 18 Ann. Cas. 600. The creditor at whose instigation they are being prosecuted as poor debtors under R. L. c. 168, although scheduled and notified of the proceedings in which it participated, did not prove the notes on which it has obtained judgment in an action begun after adjudication. The petitioners retained counsel, who duly appeared of record, but after the composition had been effected withdrew their appearance and upon default judgment, after the lapse of several months, was entered as of the date of default and execution issued. It appears that neither petitioner had actual notice of the withdrawal, or of the default, or the entry of judgment and issuance of execution until after the proceedings for their arrest were begun. While conceding that, the notes being provable debts further proceedings would have been stayed, if the discharge had been pleaded, the respondents contend that if before verdict or default a discharge is obtained failure to plead it is a waiver of the defense.
The petitioners, who upon the conceded facts were not negligent, and who were unrepresented, urge that a failure to plead a certificate of discharge before judgment is, under the circumstances, excusable in equity and it may now be set up. Or that under the provisions of section 9a that 'a bankrupt shall be exempt from arrest upon civil process except in the following cases: (1) When issued from a court of bankruptcy for contempt or disobedience of its lawful orders; (2) when issued from a state court having jurisdiction, and served within such state, upon a debt for claim from which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this act,' they are immune from arrest.
But this section very plainly refers only to the period covered by the pendency of the bankruptcy proceedings, during which jurisdiction is conferred on the bankruptcy court to protect the bankrupt from arrest on a provable debt until a discharge has been granted or refused. Wagner v. U. S., 104 F. 133, 43 C. C. A. 445; In re Marcus (D. C.) 104 F. 331; In re Fife (D. C.) 109 F. 880; People v. Erlanger (D. C.) 132 F. 883; In re Adler, 144 F. 659, 75 C. C. A. 461; Kelley v. Peters (D C.) 166 F. 613; Turgeon v. Bean, 109 Me. 189, 83 A. 557, Ann. Cas. 1913E, 567.
A discharge in bankruptcy, like the statute of limitations or the statute of frauds or a release under seal, to be effective must be pleaded. If at the time of adjudication or afterwards the bankrupt is sued on a provable debt, his sole remedy is to obtain a continuance, if necessary, and plead his discharge, and where this is done all further proceedings are stayed. Dimock v. Revere Copper Co., 117 U.S. 559, 6 S.Ct. 855, 29 L.Ed. 994; Boynton v. Ball, 121 U.S. 457, 7 S.Ct. 981, 30 L.Ed. 985.
It accordingly must be held that as the court had jurisdiction of the cause of action and of the parties and the petitioners did not interpose this defense, the judgment is not open to collateral attack and may be enforced by arrest...
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