Opinion
B. S. Pague, for petitioner.
L. E. Latourette, for contesting creditors.
BEAN, District Judge.
This is an application for the discharge of a bankrupt. From the record it appears that in December, 1904, the petitioner was adjudged a bankrupt by the District Court of the Southern District of West Virginia, and his estate administered upon and the proceeds distributed among his creditors by that court. He failed, however, through the neglect of his attorney, to apply for a discharge within the time provided by the bankrupt act (Act July 1, 1898, c. 541, Sec. 14, 30 Stat. 550 (U.S. Comp. St. 1901, p. 3427)), but on May 26, 1908, filed a voluntary petition in bankruptcy in this district, in which he scheduled the same debts, and no additional assets, as were scheduled in West Virginia. He now asks for a discharge, but it is objected to by the creditors on the ground that the matter is res adjudicata.
The law seems to be settled that the failure of a bankrupt to make a lawful application for his discharge within the time limit in section 14 of the bankrupt act is, in effect, a judgment by default, in favor of his creditors, to the effect that he is not entitled to a discharge from their claims, and is as conclusive as a judgment upon a trial. He cannot institute a subsequent proceeding in bankruptcy for the mere purpose of obtaining a discharge from debts scheduled and provable in the former proceeding, and the court should dismiss the latter as soon as
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the real purpose is called to its attention. This has been so often decided that it is enough to refer to the authorities. Kuntz v. Young, 131 F. 719, 65 C.C.A. 477; In re Schnabel (D.C.) 166 F. 383; The Pokanoket (D.C.) 161 F. 588; In re Silverman, 157 F. 675, 85 C.C.A. 224; In re Kuffler, 151 F. 12, 80 C.C.A. 508. This rule may, and no doubt does, work hardship in many instances; but this cannot change the law.
The application for a discharge is denied, and the proceeding dismissed.