In re Setzler, No. 42242-WM.

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtRupert B. Turnbull, of Los Angeles, Cal., for petitioner
Citation73 F. Supp. 314
Decision Date20 June 1947
Docket NumberNo. 42242-WM.
PartiesIn re SETZLER.

73 F. Supp. 314

In re SETZLER.

No. 42242-WM.

District Court, S. D. California, Central Division.

June 20, 1947.


Rupert B. Turnbull, of Los Angeles, Cal., for petitioner.

Harry A. Pines, of Los Angeles, Cal., for trustee.

Hubert F. Laugharn, of Los Angeles, Cal., referee in bankruptcy.

73 F. Supp. 315

MATHES, District Judge.

These proceedings were instituted by an involuntary petition in bankruptcy filed in 1943. An order of general reference was made at that time. The alleged bankrupt answered the involuntary petition, and thereafter petitioned for proceedings under Chapter XI, 11 U.S.C.A. § 701 et seq. The Chapter XI petition was approved and likewise referred to the referee.

A plan of arrangement was proposed by the debtor and, following acceptance by creditors, the referee entered an order on August 30, 1944 confirming the plan.

The plan provided that the debtor would pay $500 to a receiver forthwith, and a like sum each month commencing sixty days after approval of the plan and continuing until all unsecured debts aggregating some $50,000 were paid to the extent of one-half or more, according to class, as stipulated in the arrangement. The plan further provided that the bankruptcy court retain jurisdiction until the arrangement was fully performed.

On September 21, 1945, the referee found that the debtor was in default under the plan to the extent of payments aggregating $4,500 and entered an order directing the debtor to pay that amount to the receiver. However, no payments were made. On October 17, 1945 the referee found that the arrangement had failed because of the debtor's default and thereupon entered an order pursuant to § 377(1), 11 U.S.C.A. § 777(1), dismissing the arrangement proceedings, adjudicating the debtor a bankrupt, and directing that bankruptcy be proceeded with as provided by the Act.

In due course the trustee urged that the bankrupt be required to pay into the bankrupt estate the sum of $4,500 which he had failed to pay, either as agreed or as ordered by the referee, during the life of the arrangement. On March 21, 1946, upon petition of the trustee, the referee entered an order authorizing the trustee to sue the bankrupt in the Superior Court of the State of California in an effort to recover this sum for the estate. That action is now pending.

Thereafter the trustee interposed objections to the bankrupt's discharge, alleging the failure of the bankrupt to pay the $4,500 in question constituted refusal to obey a lawful order of the court within the meaning of § 14, sub. c(6), 11 U.S.C.A. § 32, sub. c(6). At the discharge hearing both the trustee and the bankrupt raised and argued the question whether a discharge would release the bankrupt from any obligation to pay the $4,500, and thus serve as a defense to the trustee's action in the state court.

On July 11, 1946 the referee filed his "Memorandum re Objections to Discharge of Bankrupt", holding that the "bankrupt's inability or failure to make the said payments does not have that type of moral turpitude or flagrant disregard for the order of the Court as referred to under Sec. 14, sub. c(6)," and overruling the trustee's objections. The referee also ruled that the discharge would not affect any right or remedy of the trustee in the state court action; that any judgment against the bankrupt which might be awarded the trustee in that action would constitute an asset of the bankrupt estate and would not be affected by the discharge.

At the time of filing the "Memorandum" a separate order of discharge was entered by the referee on the usual form, discharging the bankrupt "from all debts and claims which are made provable by * * * the Act against his estate, except such debts as are, by said Act, excepted from the operation of a discharge in bankruptcy." See Form No. 45, "Discharge of Bankrupt," approved by the Supreme Court, 11 U.S.C. A. following section 53. The bankrupt has petitioned for a review of both the order of discharge and the "Memorandum."

The order of discharge contains no qualifications, and the trustee has not challenged it. Nor has the trustee or any creditor challenged the referee's conclusion in the "Memorandum" that the objections to the discharge should be overruled because the bankrupt's conduct was not within the purview of § 14, sub. c(6).

These rulings would now be affirmed if the "Memorandum" had been confined to the order overruling the trustee's objections to a discharge. Instead the referee proceeded to rule that the order of discharge

73 F. Supp. 316
did not affect the bankrupt's liability for the payments which accrued during the life of the terminated plan of arrangement. Relying on Local Loan Co. v. Hunt, 1933, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195, the referee was of the opinion that the bankruptcy court had jurisdiction at its discretion to determine the "effect" of a discharge

As a general rule "the granting of a discharge is the function of the bankruptcy court alone, but its effect is for any court in which it is duly pleaded or otherwise submitted for judgment." In re Munsie, 2 Cir., 1929, 33 F.2d 79, 80; In re Devereaux, 2 Cir., 1935, 76 F.2d 522, 523; In re Andrews, D.C.Cal., 1930, 47 F.2d 949, 950. In the Hunt case, however, after receiving a discharge the bankrupt filed an ancillary bill of complaint in the bankruptcy court seeking an injunction to restrain Local Loan Co. from prosecuting a state court action to enforce an assignment of wages executed by the bankrupt prior to bankruptcy.

Recalling that a federal court has general equitable jurisdiction of an ancillary bill to implement its judgment or decree in an original action, the Supreme Court held that rule applicable to...

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11 practice notes
  • In re Ira Haupt & Co., No. 243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Febrero 1968
    ...to proceedings under this chapter." 390 F.2d 255 Appellant cites several cases in alleged support of its position. In re Setzler, 73 F.Supp. 314, 316 (S.D.Cal.1947); United States v. Sampsell, 193 F.2d 154, 155 (9th Cir. 1951); and Henkin v. Rockower, Inc., 259 F.Supp. 202, 204 (S.D.N.......
  • In re Jones, No. 73-2496 Summary Calendar.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 Febrero 1974
    ...F.Supp. 644; In re Van Meter, S.D.Cal.1962, 208 F. Supp. 835; In re Edwards, S.D.Cal.1947, 73 F.Supp. 312; In re Setzler, S.D.Cal. 1947, 73 F.Supp. 314. As the Kokoszka court The denial of a discharge can work a serious deprivation upon a debtor, and there are many circumstances where a ban......
  • Yellow Creek Logging Corp. v. Dare
    • United States
    • California Court of Appeals
    • 13 Mayo 1963
    ...for the determination of any court in which it is duly pleaded or otherwise submitted for judgment. (In re Setzler (D.C.S.D.Cal.1947) 73 F.Supp. 314, 316.) Not all frauds come within the above statutory provision excluding certain liabilities from a discharge in bankruptcy. Before a liabili......
  • In re Weisser, Bankruptcy No. 70-248-Bk-J
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 10 Septiembre 1979
    ...in bankruptcy came into possession of the bankrupt's assets. United States v. Sampsell, 193 F.2d 154, 155 (9th Cir. 1951); In re Setzler, 73 F.Supp. 314, 316 1 BR 211 Assuming then that the adjudication in bankruptcy of a shareholder of a Subchapter S corporation terminates the election, th......
  • Request a trial to view additional results
11 cases
  • In re Ira Haupt & Co., No. 243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 2 Febrero 1968
    ...to proceedings under this chapter." 390 F.2d 255 Appellant cites several cases in alleged support of its position. In re Setzler, 73 F.Supp. 314, 316 (S.D.Cal.1947); United States v. Sampsell, 193 F.2d 154, 155 (9th Cir. 1951); and Henkin v. Rockower, Inc., 259 F.Supp. 202, 204 (S.D.N.......
  • In re Jones, No. 73-2496 Summary Calendar.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 Febrero 1974
    ...F.Supp. 644; In re Van Meter, S.D.Cal.1962, 208 F. Supp. 835; In re Edwards, S.D.Cal.1947, 73 F.Supp. 312; In re Setzler, S.D.Cal. 1947, 73 F.Supp. 314. As the Kokoszka court The denial of a discharge can work a serious deprivation upon a debtor, and there are many circumstances where a ban......
  • Yellow Creek Logging Corp. v. Dare
    • United States
    • California Court of Appeals
    • 13 Mayo 1963
    ...for the determination of any court in which it is duly pleaded or otherwise submitted for judgment. (In re Setzler (D.C.S.D.Cal.1947) 73 F.Supp. 314, 316.) Not all frauds come within the above statutory provision excluding certain liabilities from a discharge in bankruptcy. Before a liabili......
  • In re Weisser, Bankruptcy No. 70-248-Bk-J
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 10 Septiembre 1979
    ...in bankruptcy came into possession of the bankrupt's assets. United States v. Sampsell, 193 F.2d 154, 155 (9th Cir. 1951); In re Setzler, 73 F.Supp. 314, 316 1 BR 211 Assuming then that the adjudication in bankruptcy of a shareholder of a Subchapter S corporation terminates the election, th......
  • Request a trial to view additional results

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