In re Johnson

• Decision Date: 17 November 1911
• Citation: 192 F. 356
• Parties: In re JOHNSON.
• Court: U.S. District Court — District of South Dakota

192 F. 356

In re JOHNSON.

United States District Court, D. South Dakota, Southern Division.

November 17, 1911

Aikens & Judge, for objecting creditor.

Bailey & Voorhees, for bankrupt.

ELLIOTT District Judge.

Nels P Johnson was adjudicated a bankrupt on the 8th day of March 1910. At various times thereafter the bankrupt attended before the referee in bankruptcy and was examined by the attorney for the creditors, and on the 2d day of May, 1910 filed an application for discharge. On the 2d day of June, 1910, objections were filed by the sole creditor. August 10, 1910, answer to specifications was by leave of the court filed by the bankrupt. On the 10th day of August, A.D. 1910, specifications thereunder were referred to the referee in bankruptcy as special master to hear and report upon such issue. On the 11th day of November, 1911, the attorney for the objecting creditor made a motion for leave to file amended specifications, copy of which, together with an affidavit, was submitted with his moving papers.

Said affidavit sets forth the proceedings that had been taken, and further stated, in substance, that after reference to the master as above stated no move was made by bankrupt, and that he concluded that bankrupt had abandoned his application for discharge, owing to such delay; that the testimony of the bankrupt, taken at the first meeting of the creditors, disclosed certain testimony with reference to said property of the bankrupt, and that he, the attorney for the objecting creditors, did not ascertain that it would be possible to get the evidence of the person referred to upon such examination with reference to the property concerned in such examination until the week preceding the time of making the application for the amendment, and that the testimony of such witness would substantiate specification numbered 7 in the proposed amended specifications; that his application was made in good faith; that he referred to the transcript of the testimony of the bankrupt, given at the first meeting of creditors, on file. Said affidavit further stated that at such hearing the bankrupt committed the offense of knowingly and fraudulently making a false oath in relation to his property and estate in the particulars therein set forth, and set forth at length in the proposed amended specifications.

While there has been what would appear upon its face to be an unreasonable lapse of time, upon which the court, without examination, would naturally conclude that the opposing creditors had been guilty of laches, and for that reason ought not to be heard at this time upon this application to file amended specifications, the circumstances attending the conduct of this proceeding by those in charge of the interests of the bankrupt are shown to be such that for the purposes of this hearing I am satisfied that I may, in the exercise of a reasonable discretion, excuse the delay, and consider this motion as if it had been made without an unreasonable delay after the 10-day limitation prescribed by No. 32 of the general orders in bankruptcy.

The court further finds that this application is made by the creditor in good faith, and that the amendment proposed by the amended specifications is of and...