In re Carmichael

Decision Date27 September 1899
Citation96 F. 594
PartiesIn re CARMICHAEL.
CourtU.S. District Court — Northern District of Iowa

P. R Bailey, for bankrupt.

O. H Montsheimer, for opposing creditor.

SHIRAS District Judge.

The petition upon which the adjudication of bankruptcy was entered in this case was voluntarily filed by John A Carmichael, and in form is his individual petition, no reference being made therein to any partnership relation having existed between the petitioner and any third party and the adjudication was entered against Carmichael only. In the progress of the case before the referee, it was developed that some 15 years ago the bankrupt was a member of a firm composed of Robert Jones, George W. Schee, and the bankrupt, and the bulk, if not all, of the indebtedness set forth in the schedules attached to the petition was created for goods purchased by the firm, which failed and went out of business some 15 years ago, but it does not appear that any formal settlement of the partnership affairs has ever been had. At the first meeting of the creditors, George W. Schee appeared as a creditor, setting up the fact that he had bought the judgments entered against the firm in favor of the creditors thereof; and, upon a hearing subsequently had, the referee found and adjudged that he was a creditor of the bankrupt in the sum of $1,282.67, as evidenced by judgments against the partners, but assigned to Schee. Upon the filing of the petition for discharge, Schee filed objections thereto, and the case is now before the court upon the question whether the bankrupt is entitled to a discharge. Under the form of the petition and the adjudication, the bankrupt is only entitled to ask a discharge against his individual creditors, as there has been no foundation laid in the proceedings for a discharge against the partnership creditors, if any such now exist. So far, however, as the opposing creditor is concerned, he is but a creditor individually of the bankrupt. By the purchases made by him of the judgments entered against the firm of which he was a member, he discharged the liability of the firm to the judgment creditors, but became a creditor of his co-partners for their respective shares of the money by him advanced in the purchase and discharge of these judgments, and the mere fact that he procured assignments in writing to himself of the judgments in question does not change his position with respect to his co-partners. It was therefore open to Schee to appear as a creditor of Carmichael, his former partner, and to prove up his claim against him as an individual; but, having done so, he occupies merely the position of an individual creditor, against whom a discharge, if granted, will be effectual, the same as though he had never been a partner with the...

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9 cases
  • Morris v. Covey
    • United States
    • Arkansas Supreme Court
    • May 20, 1912
    ...591. 9. Appellant's demurrer to the interplea should have been sustained. Remington on Bankruptcy, §§ 2469, 2670; 102 F. 731; 128 F. 971; 96 F. 594; Sec. 17, Bankrupt Collier on Bankruptcy, (8 ed.) 308, 331; 88 Ark. 519; 5 Cyc. 240-41; 97 Ark. 513; 116 F. 530; 115 F. 906. Rice & Dickson and......
  • In re Wright, Bankruptcy No. 79-03567
    • United States
    • U.S. Bankruptcy Court — Northern District of Alabama
    • November 13, 1980
    ...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 Carmichael, 96 F. 594 (N.D.Iowa 1899); In re Thomas, 92 F. 912 (S.D.Iowa 1899); Local Loan Co. v. Hunt, 292 U.S. 234, 241-42, 54 S.Ct. 695, 697, 78 L.Ed. 1230, 92......
  • In re Blanchard
    • United States
    • U.S. District Court — District of New Jersey
    • October 14, 1918
    ... ... Lidderdale v. Robinson, Fed. Cas. No. 8,337, 2 ... Brock. 159, affirmed 12 Wheat. 594, 6 L.Ed. 740; German, ... etc., Bank v. Fritz, 68 Wis. 390, 32 N.W. 123; ... Dillenbeck v. Dygert, 97 N.Y. 303, 49 Am.Rep. 525; ... McDaniel v. Lee, 37 Mo. 204; In re ... Carmichael, 96 F. 594 (D.C.N.D. Iowa); In re ... Bingham, 94 F. 796 (D.C. Vt.); 37 Cyc. 428; Brandt on ... Suretyship & Guaranty, vol. 1 (3d Ed.) Sec. 341. As there is ... no evidence that the other sureties are insolvent, and no ... other equity to change the general rule appears, the claimant ... is ... ...
  • In re McGurn
    • United States
    • U.S. District Court — District of Nevada
    • June 16, 1900
    ... ... the ground of his having failed to keep proper books of ... account, it must be shown that such failure was with a ... fraudulent intent on the part of the bankrupt to conceal his ... true financial condition, and 'in contemplation of ... bankruptcy.' In re Holman, supra; In re Carmichael ... (D.C.) 96 F. 594; In re Hirsch, Id. 468; Id., ... 97 F. 571 ... The ... grounds set forth and the evidence submitted by the opposing ... creditor fail to bring this case within either of the ... statutory grounds upon which the application for ... petitioner's discharge could ... ...
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