In re Boardway

Decision Date17 March 1918
Citation248 F. 364
PartiesIn re BOARDWAY.
CourtU.S. District Court — Northern District of New York

Thos R. Tillott, Jr., of Schenectady, N.Y., for judgment debtor.

Del B Salmon, of Schenectady, N.Y., for judgment creditor and bankrupt.

RAY District Judge.

The judgment debtor, George Boardway, was duly adjudicated a bankrupt in this court and duly filed his schedules, which included the claim of the judgment creditor, David H O'Brien, whose address was properly and correctly given and who was duly notified of all proceedings in the bankruptcy matter. O'Brien's claim was one provable in bankruptcy. In due time Boardway filed his application for a discharge, and the usual proceedings were had and notice duly given to all creditors, including O'Brien. There being no appearances or objection, Boardway was discharged, and the usual order made and entered, and a discharge issued.

Thereafter O'Brien sued Boardway on such claim, one provable in bankruptcy, in the City Court of the city of Schenectady, N.Y., and process was duly served. Boardway did not appear, and O'Brien took judgment on such claim by default, and issued execution, and has garnished Boardway's wages. The said judgment has not been opened or vacated. Application was made, ex parte, to this court for an order enjoining further proceedings on the judgment and on the garnishee proceedings, and all the facts not appearing, and this court assuming the bankruptcy proceedings to be pending, and that the judgment was obtained prior to adjudication, granted the stay. The judgment creditor, O'Brien, moves to vacate such injunction order.

The motion to vacate must be granted. The bankruptcy proceeding was commenced in June, 1916, and the discharge was granted November 6, 1917. The estate was closed, and the bankruptcy proceedings ended, prior to suit brought on such claim and prior to the obtaining of such judgment. The jurisdiction of this court ended with the closing of the estate. Whether or not said O'Brien, when he brought suit, had a claim on which he could sue and obtain judgment in the City Court, is not for this court to decide. He sued and obtained a judgment after the bankruptcy proceedings were closed, which is in full force, and no bankruptcy proceedings are now pending. Boardway, when sued, might have appeared in the City Court and there pleaded his discharge in bankruptcy and defeated the suit, assuming the facts to have been as stated; but this he did not do. This court has no power to interfere with the enforcement of that judgment. If, after bankruptcy proceedings are ended, a creditor sues the bankrupt on a claim which has been discharged, he may appear and plead and prove his discharge, and it will be a...

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4 cases
  • Helms v. Holmes
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 15, 1942
    ...upon which such judgment was recovered, an order must be made directing said judgment be canceled and discharged of record.'" In re Boardway, D.C., 248 F. 364, 365. We are unaware of a similar applicable statute in North Carolina. Cf. Paschall v. Bullock, 80 N.C. 329. And in the absence of ......
  • In re Wright, Bankruptcy No. 79-03567
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • November 13, 1980
    ...161 F. 913 (3rd Cir. 1908); In re Madder Madden, 257 F. 581 (D.N.J.1919); In re Weisberg, 253 F. 833 (E.D.Mich.1918); In re Boardway, 248 F. 364 (N.D.N.Y.1918); In re McCarty, 111 F. 151 (N.D.Ill.1901); In re Mussy, 99 F. 71 (D.Mass.1900); In re Rhutassel, 96 F. 597 (N.D.Iowa 1899); In re C......
  • Matter of Forgay, B-137-54.
    • United States
    • U.S. District Court — District of Utah
    • April 4, 1956
    ... ... The now outmoded theory that the bankruptcy court lost jurisdiction after discharge of the bankrupt is set forth in the case of In re Boardway. 4 In that case the federal court held that it had no power to interfere with the enforcement of a state court judgment obtained on a debt which had been discharged in bankruptcy because the bankruptcy court lost its jurisdiction after the discharge ...         The Supreme Court of the ... ...
  • Tubbs v. McCabe
    • United States
    • Delaware Superior Court
    • March 1, 1933
    ... ... Winter v. Hindin 3 W ... W. Harr. (33 Del.) 294; Collins v ... McWalters, 35 Misc. 648, 72 N.Y.S. 203; ... Ala. Great So. Rwy. Co. v. Crawley, 118 ... Miss. 272, 79 So. 94; Zavelo v ... Reeves, 227 U.S. 625, 629, 33 S.Ct. 365, 57 L.Ed. 676, ... Ann. Cas. 1914D, 664; In re Boardway ... (D. C.), 248 F. 364; Herschman v. Justices of ... the Municipal Court of Boston, 220 Mass. 137, 107 N.E ... This is ... apparent from the fact that in order for it to bar a ... subsequent action it must be both pleaded and proved ... Smith v. Cook, 71 Ga. 705; Schreiber v ... ...

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