In re Van Orden

• Decision Date: 29 July 1899
• Parties: In Re VAN ORDEN.
• Court: U.S. District Court — District of New Jersey

96 F. 86

In Re VAN ORDEN.

United States District Court, D. New Jersey.

July 29, 1899

S. M Hitchcock and Henry Young, for bankrupt.

Skinner & Ten Eyck, for creditor.

KIRKPATRICK District Judge.

On the 26th day of June, 1899, John M. Van Orden was adjudged a bankrupt by this court upon his petition, and on that day an order was entered restraining Margaret J. Van Orden, his wife, from prosecuting a suit brought by her against the said bankrupt, and then pending in the court of chancery of New Jersey. The claim which Mrs. Van Orden seeks to enforce in said suit arises under the following circumstances: Prior to the year 1897, Mr. and Mrs. Van Orden were residents of the state of New York, and Mrs. Van Orden filed here complaint in the supreme court of that state asking for a divorce a mensa et thoro from her husband, and for other relief. Such proceedings were had therein on the 31st day of August, 1897, a judgment was rendered in favor of Mrs. Van Orden and against her husband, in and by which the husband was decreed to pay to the plaintiff the sum of $300 surgeon's charges, $650 for nursing and attendance, and the sum of $263.87 taxed costs, and, commencing May 1, 1897 the sum of $150 per month during her natural life, for which several sums it was ordered that the plaintiff should have execution. Nothing was realized on this judgment. The defendant removed to the state of New Jersey, and afterwards about July, 1898, suit was brought by Mrs. Van Orden for the recovery of said sums in the court of chancery of New Jersey. This suit, though founded on the judgment recovered in New York, was brought in a court of equity, because of the still existing marital relations of the parties. In the bill of complaint filed on her behalf, the complainant alleges 'that there is now due your oratrix under said decree (referring to the New York judgment, a copy of which is annexed to her bill) the sum of twenty-two hundred and fifty dollars, being fifteen of the monthly payments at one hundred and fifty dollars per month directed to be paid to your oratrix, and also the sums of three hundred dollars and six hundred and fifty dollars mentioned in the decree, and the costs therein taxed, namely, two hundred and sixty-three dollars and eighty-seven cents; making in all the sum of three thousand three hundred and sixty-three dollars and eighty-seven cents, with interest from August 31, 1897. ' The prayer of the bill is that 'John M. Van Orden be directed to pay, pursuant to said decree of the New York court, the said sum of $3,363.87, with interest. ' The matter now comes before the court upon a rule to show cause why the order staying such suit should not be set aside. It is insisted on behalf of Mrs. Van Orden that she should be permitted to prosecute her suit because her debt is not such a one as is provable in bankruptcy, nor would it be discharged by the decree of this court in proceedings had therein. Section 1 of the bankruptcy act of 1898 provides that 'a 'discharge' shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy except such as are excepted by this act. ' The debts which are excepted and referred to in section 1 are to be found specifically set out in section...