In re Warnock

• Decision Date: 02 March 1917
• Docket Number: 4348.
• Citation: 239 F. 779
• Parties: In re WARNOCK.
• Court: U.S. District Court — Western District of Tennessee

239 F. 779

In re WARNOCK.

No. 4348.

United States District Court, W.D. Tennessee, Western Division.

March 2, 1917

Dan F Elliotte, of Memphis, Tenn., for petitioner.

Rhea P Cary and John Vorder-Bruegge, both of Memphis, Tenn., for respondent.

McCALL District Judge.

On November 10, 1916, A. G. Warnock filed a voluntary petition in bankruptcy in this court, and was on that date adjudicated a bankrupt. Among other debts against him which he scheduled, was one in favor of Mrs. Frankie for $144. No assets were scheduled. It appears that just prior to the filing of the petition in bankruptcy, Mrs. Frankie, through her attorney, had brought suit on this claim before W. A. Taylor, a justice of the peace of Shelby county, Tenn. On February 17, 1917, the bankrupt presented a petition to this court, in which, among other things, it is alleged that Mrs. Frankie, 'for the purpose of harassing, annoying, and working great injury to your petitioner, has, through her agents and employes, persisted in continuing the prosecution for collection of the aforesaid indebtedness, in the court of W. A. Taylor, a justice of the peace of Shelby county, Tenn., which has been placed in judgment for the sum of $127, and that said justice has upon said judgment issued a writ of garnishment, and the same has been levied upon the wages earned by your petitioner during the past 30 days, for the purpose of applying the same towards satisfying the judgment so rendered,' in disregard of the pending proceedings in bankruptcy, and the bankruptcy law relating thereto, and prays that an order restraining Mrs. Frankie, her agents, and employes, from seeking to enforce the judgment by writ of garnishment or otherwise, against any property belonging to your petitioner, acquired since the date of the adjudication, and that they be required to release and withdraw the writ of garnishment.

The restraining order was issued in accordance with the prayer of the petitioner, and notice thereof served upon Mrs. Frankie, her agents, and employes, commanding them to appear before this court on the lst day of March, 1917, and show cause, if any, why the injunction should not be made permanent. On March 1, 1917, Mrs. Frankie filed an answer, which admits practically all the allegations in the petition that are necessary to be noticed here, and sets up as a defense that on January 9, 1915, the bankrupt filed a voluntary petition in bankruptcy in this court, and scheduled as one of the debts against him this same debt of Mrs. Frankie that is scheduled in the petition filed November 10, 1916; that he did not apply for, nor did he obtain, a discharge in said proceedings begun January 9, 1915, and pleads said former petition in bankruptcy, the schedule of the debt now in question, and the failure to obtain a discharge, as a bar to the right of the petitioner to stay the proceedings in the justice of the peace court, upon the ground that, having failed to obtain a discharge in the former proceedings, the debt now in question is not dischargeable in bankruptcy, that question being res adjudicata, and insists that the respondent is at liberty to prosecute the same to judgment and collection, notwithstanding the pendency of the present proceeding in bankruptcy.

The law is, as I understand it, that where a bankrupt fails to apply in due time for a discharge, or is denied a discharge, from debts provable in one proceeding, he cannot be granted a discharge from such debts in a subsequent proceeding. Collier on Bankruptcy (9th Ed.) 318; In re Loughran (D.C.) 215 F. 271; ...