In re Stilwell
| Decision Date | 04 June 1941 |
| Docket Number | No. 251.,251. |
| Parties | In re STILWELL. |
| Court | U.S. Court of Appeals — Second Circuit |
Frank J. Militello and Harry M. Young, both of Mayville, N. Y., for appellant.
Stanley G. Falk and Falk, Phillips, Twelvetrees & Falk, all of Buffalo, N. Y. (Louis Borinsky, of Buffalo, N. Y., on the brief), for appellees.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
On November 10, 1930, Ralph A. Stilwell, appellant here, was adjudicated a voluntary bankrupt. On March 23, 1931 he petitioned for a discharge, and the District Court ordered that due notice be published and mailed to creditors. There is no proof of compliance with this order and we may take it as established that no notice was given. Shortly thereafter the referee, who is now deceased, recommended that discharge be withheld until an unpaid balance on the expenses of the proceeding, amounting to $22.56, was paid. For the following nine years there is a hiatus. Then, on July 12, 1940, Stilwell — who, under the name of Earl V. Jones, had become a prominent and prosperous citizen of a distant city — paid the $22.56 which was due and, on the following day, was granted a discharge. Several creditors promptly petitioned to have the discharge set aside, for want of the requisite notice, and to have the proceedings for discharge dismissed for "abandonment". From an order granting this petition, Stilwell appeals.
The discharge was properly set aside. Notice to creditors of the application for discharge is required by § 58 of the Bankruptcy Act, 11 U.S.C.A. § 94, and is essential to protect the opportunity of the creditors to present objections to the discharge. Its importance to creditors, as contrasted with its relative lack of irksomeness to debtors, is so great that courts will not require the creditor to show that he was hurt, nor permit the debtor to show that his adversary was not damaged. Notice is, in a shorthand phrase, "jurisdictional." See John B. Ellison & Sons v. Weintrob, 4 Cir., 1921, 272 F. 466; cf. Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424.
That part of the order which dismissed the proceedings is another matter. The court below held, in effect, that the unexcused delay constituted laches, and barred a discharge. Appellant's explanation for the delay, apparently unconvincing to the court below, was a lack of knowledge that the discharge had not been granted. To a court of equity, however, delay alone seldom bars anything; the touchstone which...
To continue reading
Request your trial
-
Lottie Joplin Thomas Trust v. Crown Publishers
...477, 479 (7th Cir. 1975); Tobacco Workers Int'l Union, Local 317 v. Lorillard Corp., 448 F.2d 949, 958 (4th Cir. 1971); In re Stilwell, 120 F.2d 194 (2d Cir. 1941); Edward B. Marks Music Corp. v. Wonnell, 61 F.Supp. 722, 728 (S.D.N.Y.1945) (Conger, J.). The record herein is barren of any ev......
-
In re Zimmer, 27037-Y.
...notice, both under the old and the new law. Such notice is jurisdictional. See: Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; In re Stilwell, 2 Cir., 1941, 120 F.2d 194. A petition for reopening is not governed by any formal procedure, and it may be made ex parte. But before the objecting cre......
-
United States v. Certain Lands, Etc., Dare County, NC
...v. Western Maryland Ry. Co., 128 F.2d 709 (4th Cir., 1942), certiorari denied, 317 U.S. 671, 63 S.Ct. 75, 87 L.Ed. 538; In re Stilwell, 120 F.2d 194 (2nd Cir., 1941). Additionally, assuming arguendo that Judge Gilliam's letter had the legal effect of ordering a rehearing, the defendant's fa......
-
Interpool, Ltd. v. Certain Freights of M/V Venture Star, Civ. A. No. 86-149
...and neither the creditor nor the bankrupt is required to show harm or lack thereof before this notice is required. See In re Stilwell, 120 F.2d 194 (2d Cir.1941). Another provision requires the trustee and the creditors to hold a series of meetings concerning the liquidation of assets in th......