John B. Ellison & Sons v. Weintrob
| Decision Date | 01 February 1921 |
| Docket Number | 1858. |
| Citation | 272 F. 466 |
| Parties | JOHN B. ELLISON & SONS v. WEINTROB. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert H. Sykes, of Durham, N.C., for appellant.
D. H Gladstone, of Washington, D.C., for appellee.
Before KNAPP and WOODS, Circuit Judges, and WEBB, District Judge.
A Weintrob, bankrupt. filed his petition for discharge October 29, 1917. An order was made directing the clerk to publish notice of the application and mail a copy of the notice to each creditor, addressed to his place of residence. The referee who heard the petition for discharge certified to the court that--
'pursuant to an order of Court, notice of the hearing to be had before me was given by Hon. Leo D. Heartt, clerk; that pursuant to such order a hearing on the petition for discharge was had before me at my office in Durham on the 3d day of December 1917, at 12 m.; that no creditor, or attorneys representing creditors, were present at said hearing; that no special appearance was entered and no specifications of objections filed, opposing the granting of a discharge to said bankrupt.'
On the referee's recommendation a formal certificate of discharge was made. On January 17, 1920, the firm of John B Ellison & Sons, a creditor of the bankrupt, filed its petition on behalf of itself and 10 other creditors, who joined therein, asking that the discharge be set aside on the ground that they had received no notice of the application. The petition was supported by affidavits of each of the creditors joining in the petition that they had received no notice of any description from any source of the application for the discharge up to the time of the making of the affidavits in the autumn of 1919.
The record shows that the form of affidavit to the effect that the notice had been published and mailed, attached to the petition for discharge, was not filled out nor signed by the clerk, who had been ordered to give the notice. This fact, and the other fact that no one of the 10 creditors received notice of the application for discharge, in the absence of any showing to the contrary, require the finding intimated by the District Court that no notice of the application for discharge was published or mailed as required by the statute and the order of the court.
The District Court refused to set aside the discharge, on the ground that the failure of the creditors to move within one year was fatal under section 15 of ...
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In re Stilwell
...No. 1266; In re Lederer, D.C., 125 F. 96; Lindeke v. Converse, 8 Cir., 198 F. 618; In re Langfeldt, D.C., 253 F. 458; Ellison & Sons v. Weintrob, 4 Cir., 272 F. 466; Rash v. Metzger, 3 Cir., 31 F.2d 424; In re Martin, 7 Cir., 38 F.2d 629; In re Ingrao, D.C., 40 F.2d 946. The instant case is......
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In re Knepper
...In re Hoover (D.C.) 105 F. 354, 5 A.B.R. 247; In re Weintrob (D.C.) 263 F. 904, reversed on other grounds in John B. Ellison & Sons v. Weintrob (C.C.A.) 272 F. 466. It is not, however, necessary to determine that question. Even if fraud were charged, the one-year provision of section 15 is ......
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In re Federman
...See In re Knepper, D.C.N.D.N.Y., 12 F.Supp. 989, 991; In re Weintrob, D.C.E.D.N.C., 263 F. 904, 906, reversed on other grounds in 4 Cir., 272 F. 466. But however that may be, we are clear that the one-year limitation of section 15 has no application to the present proceeding, which makes a ......
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In re Pope
...prerequisite to the validity of the discharge. It was held in Re Stilwell, 2 Cir., 120 F.2d 194, and in John B. Ellison & Sons v. Weintrob, 4 Cir., 272 F. 466, that a failure to mail the prescribed notice to creditors warranted a vacation of the discharge on the ground that the court was wi......