In re Purrier, 14437.

• Decision Date: 25 September 1947
• Docket Number: No. 14437.,14437.
• Court: U.S. District Court — Western District of Washington
• Parties: In re PURRIER et ux.

73 F. Supp. 418

In re PURRIER et ux.

No. 14437.

District Court, W. D. Washington, S. D.

September 25, 1947.

Robert W. Garver, of Camas, Wash., for bankrupts.

Edgar M. Swan, of Vancouver, Wash., for James H. Rosencrans.

LEAVY, District Judge.

This matter came on for hearing before the court on June 23, 1947, on petition of the bankrupts for review of an order, made by the referee in bankruptcy on February 5, 1947, granting an unqualified discharge as to all debts scheduled except the claim of James H. Rosencrans and wife in the sum of $10,025.

The facts, briefly summarized, are that, on October 19, 1939, a jury in the superior court of the State of Washington for Clark County, in a personal injury action, returned a verdict in favor of the plaintiffs, James H. Rosencrans and wife, and against the defendant, George R. Purrier, Jr., for $10,000. Purrier seasonably filed a motion for judgment n. o. v. and for a new trial. While these motions were pending, Purrier and wife, December 29, 1939, filed a petition in bankruptcy, which included the $10,000 verdict; and, on January 2, 1940, were adjudicated bankrupts. February 24, 1940, an order of discharge in bankruptcy was entered. Subsequent to the entry of the order of discharge, the motions which were then pending in the state court were denied, and a judgment was entered on the jury's verdict. Following the entry of the judgment, a further proceeding was had in the state court, wherein it was held that the bankruptcy proceeding did not have the effect of discharging the obligation out of which the judgment arose. This order became final, as no appeal was taken.

March 22, 1946, more than six years after their discharge in the first bankruptcy proceeding, the bankrupts herein filed a second petition, and were again adjudicated bankrupts. The only debt listed in this second petition was the judgment in favor of Rosencrans. April 16, 1946, Rosencrans made his first appearance in the bankruptcy proceeding by filing a motion to dismiss the proceeding, for the reason that the debt scheduled was the same debt as had been listed in the earlier bankruptcy proceeding, and was res judicata. November 15, 1946, an order was entered by the referee in bankruptcy denying the motion to dismiss; and, on the same day, an order was made fixing December 17, 1946, as the last day for the filing of objections to the discharge of the bankrupts, and due notice thereof was given.

November 18, 1946, the scheduled creditor, Rosencrans, filed his objections to the discharge of the bankrupts, based upon the same grounds as set forth in his original motion to dismiss. The objections were set down for hearing on December 31, 1946. Neither the attorney for the bankrupts nor the bankrupts appeared at the time and place set. The attorney for the creditor, Rosencrans, was present and submitted authorities in support of his objections. February 5, 1947, the referee entered his order herein granting the discharge of the bankrupts and excepting therefrom the scheduled judgment in favor of Rosencrans. The Rosencrans' claim having been the only one listed, the qualified order of discharge, in effect, became a dismissal of the bankruptcy proceeding.

February 20, 1947, the bankrupts filed their petition for review of the proceeding, for the reason that no formal notice had been given to them of the hearing on the objections to their discharge, and that Rosencrans, not having filed a claim, was not entitled to object to a discharge; also, that the order of the referee excepting Rosencrans' claim from the operation of the order of discharge is contrary to law. March 3, 1947, the judgment creditor, Rosencrans, filed in this court a motion to dismiss the petition of the bankrupts for review, on the ground that such petition had been seasonably filed within ten days after the order...