Maizel v. Epstein, 11053.
| Citation | 196 F.2d 44,90 US App. DC 328 |
| Decision Date | 10 April 1952 |
| Docket Number | No. 11053.,11053. |
| Parties | MAIZEL v. EPSTEIN. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Benjamin B. Brown, Washington, D. C., with whom Samuel B. Brown and Nathan M. Brown, Washington, D. C., were on the brief, for appellants.
Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.
Molly Epstein sued Jack Plotkin, Samuel Maizel and Mary M. Maizel in the United States District Court for the District of Columbia for $15,400, the alleged unpaid balance of a promissory note. Plotkin and Maizel, in separate but identical answers, alleged they had been adjudicated bankrupts in the Eastern District of Virginia, and stated the erroneous conclusion that the mere adjudication had discharged the plaintiff's claim against them. Mrs. Maizel's answer, which is not in the record before us, apparently presented some other defense. All three defendants filed separate but similar counterclaims against the plaintiff for $40,000 damages for malicious prosecution alleged to have been initiated on or about November 14, 1950.
The plaintiff, Mrs. Epstein, moved to strike the counterclaims of the two male defendants, on the ground that they had been adjudicated bankrupts on November 21, 1950, and that therefore any rights of action in their favor which had arisen theretofore passed to their trustees. Following the filing of this motion, the District Court dismissed the two counterclaims.
Plotkin and Maizel appeal, saying the court erred in dismissing their counterclaims on the ground indicated, because a right of action for the personal tort of malicious prosecution is not assignable under Virginia law, and does not pass to the victim's trustee when he is later adjudicated a bankrupt.
Other questions are implicit in the record: (a) did the court prematurely dismiss the counterclaims, since the bankrupts might have been able to prove that the rights of action against Mrs. Epstein had been listed as assets in their schedules and had been relinquished to them by their trustees;1 and (b) did the court err, at least as far as comity is concerned, in dismissing the counterclaims without first causing notice of the nature and pendency of the action to go to the referee in bankruptcy, thus affording him an opportunity, if he thought it proper, to direct the trustees to intervene and ask to be substituted for the bankrupts as counterclaimants or, if the cases had been closed and the trustees discharged, to reopen the proceedings and appoint trustees for that purpose?
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