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Freshman v. Atkins

U.S.
Nov 16, 1925
269 U.S. 121 (1925)

Summary

holding that a court on its own motion may dismiss a second bankruptcy petition if the petition includes the same debts as a pending bankruptcy proceeding and noting that courts may take judicial notice "and give effect to its own records in another interrelated proceeding"

Summary of this case from Friedlander v. Los Alamos National Bank

Opinion

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 41.

Argued October 14, 1925. Decided November 16, 1925.

1. The pendency of a voluntary petition in bankruptcy precludes consideration of a second voluntary petition in respect of the same debts. P. 122. 2. The District Court, on application for discharge in a voluntary proceeding in bankruptcy, may take judicial notice of the pendency, in its own records, of an earlier like application; and of its own motion, because of such pendency, may refuse the later application, in so far as the same debts are concerned. P. 123. 294 F. 867, affirmed.

CERTIORARI to a judgment of the Circuit Court of Appeals affirming an order of the District Court, which denied in part an application for a discharge in bankruptcy. 290 F. 609.

Mr. Paul Carrington, with whom Messrs. Joseph Manson McCormick and Francis Marion Etheridge were on the briefs, for petitioner.

No appearance for respondent.


On November 1, 1915, the petitioner filed in the federal district court for the northern district of Texas a voluntary petition in bankruptcy. Within the statutory time he applied for his discharge, which was contested. The referee, to whom it had been referred as special master, having died after a hearing, his successor as referee reviewed the record and recommended that the discharge be denied. The referee's report was filed with the clerk, but not acted upon by the court, nor was the matter ever brought to the court's attention by the petitioner or any other interested party. On November 11, 1922, a second voluntary petition was filed by the bankrupt. The creditors listed in the first petition were, together with others, included in the second. In February, 1923, the petitioner filed an application for a discharge under the second proceeding. The referee recommended that the discharge be granted. The court, upon its own initiative, took judicial notice of the pendency of the former application and denied the second, in respect of the creditors included in the first petition; granted it as to the additional creditors; and, upon an inspection of the record, denied, by a separate order, the discharge sought under the original proceeding. 290 F. 609. The order denying in part the second application was affirmed on appeal by the circuit court of appeals. 294 F. 867. A motion was made in the district court for a rehearing of the question of discharge under the original proceeding, but what, if any, action has been taken respecting it, does not appear.

The opinions of the two courts do not proceed upon precisely similar grounds, but they reach the same conclusion, which is, in effect, that the pendency of the first application precluded a consideration of the second in respect of the same debts. In this conclusion we concur. A proceeding in bankruptcy has for one of its objects the discharge of the bankrupt from his debts. In voluntary proceedings, as both of these were, that is the primary object. Denial of a discharge from the debts provable, or failure to apply for it within the statutory time, bars an application under a second proceeding for discharge from the same debts. Kuntz v. Young, 131 F. 719; In re Bacon, 193 F. 34; In re Fiegenbaum, 121 F. 69; In re Springer, 199 F. 294; In re Loughran, 218 F. 619; In re Cooper, 236 F. 298; In re Warnock, 239 F. 779; Armstrong v. Norris, 247 F. 253; In re Schwartz, 248 F. 841; Horner v. Hamner, 249 F. 134; Monk v. Horn, 262 F. 121. A proceeding in bankruptcy has the characteristics of a suit, and since the denial of a discharge, or failure to apply for it, in a former proceeding is available as a bar, by analogy the pendency of a prior application for discharge is available in abatement as in the nature of a prior suit pending, in accordance with the general rule that the law will not tolerate two suits at the same time for the same cause.

Here there was no plea or objection by any interested party, and it is argued that this is a necessary prerequisite to a consideration of the matter — that the court may not refuse a discharge ex mero motu. That such is the rule where the action of the court is based upon one or more of the acts of the bankrupt which operate to preclude a discharge may be conceded. But the objection that the issue is already pending, as that it has been adjudged, goes to the right of the bankrupt to maintain the later application, not to the question of the evidence or grounds upon which the relief may be granted if the application be maintainable. The refusal to discharge was not on the merits but upon the procedural ground that the matter could not properly be considered or adjudged except upon the prior application. This application had been reported upon adversely by the referee, was still pending, and, in ordinary course, could have been considered and acted upon by the court. To ignore it and make a second application, involving a new hearing, was an imposition upon and an abuse of the process of the court, if not a clear effort to circumvent the statute by enlarging the statutory limitation of time within which an application for a discharge must be made. In such a situation the court may well act of its own motion to suppress an attempt to overreach the due and orderly administration of justice. What is said in the Fiegenbaum Case, supra, p. 70, is appropriate here: "Not only should the court of bankruptcy protect the creditors from an attempt to retry an issue already tried and determined between the same parties, but the court, for its own protection, should arrest, in limine, so flagrant an attempt to circumvent its decrees." There is nothing in Bluthenthal v. Jones, 208 U.S. 64, to the contrary. There the previous denial of a discharge had been in another court sitting in another state. This court held that, while an adjudication in bankruptcy, refusing a discharge, came within the rule of res judicata, the court in which the second proceeding was brought was not bound to search the records of other courts and give effect to their judgments. This is far from saying that the court may not take judicial notice of, and give effect to, its own records in another but interrelated proceeding, as this was. See In re Loughran, supra, p. 621; Bienville Water Supply Co. v. Mobile, 186 U.S. 212, 217; Dimmick v. Tompkins, 194 U.S. 540, 548; Louisville Trust Co. v. Cincinnati, 76 F. 296, 318; In re Sussman, 190 F. 111, 112.

The order of the district court denying the first application is not before us for consideration. If erroneous, relief may be afforded by proper and timely application to that court or by an appellate review of the order.

Judgment affirmed.


Summaries of

Freshman v. Atkins

U.S.
Nov 16, 1925
269 U.S. 121 (1925)

holding that a court on its own motion may dismiss a second bankruptcy petition if the petition includes the same debts as a pending bankruptcy proceeding and noting that courts may take judicial notice "and give effect to its own records in another interrelated proceeding"

Summary of this case from Friedlander v. Los Alamos National Bank

In Freshman v. Atkins, 269 U.S. 121, 46 S. Ct. 41, 70 L. Ed. 193, it was said, arguendo, to be the result of cases there cited from this and other courts that "denial of a discharge from the debts provable, or failure to apply for it within the statutory time, bars an application under a second proceeding for discharge from the same debts."

Summary of this case from Prudential Loan Finance Co. v. Robarts

adverting to general rule that court may take judicial notice of "its own records another, but interrelated, proceeding"

Summary of this case from Polidoro v. Saluti

allowing the debtor's second bankruptcy to remain open only with respect to new debts because the "pendency of the first application [for discharge] precluded a consideration of the second in respect of the same debts"

Summary of this case from In re Robinson

In Freshman, the Supreme Court held that the pendency of a voluntary petition in bankruptcy precludes consideration of a second voluntary petition in connection with the same debts.

Summary of this case from Prudential Ins. Co. of America v. Colony Square

In Freshman v. Atkins, 1925, 269 U.S. 121, at pages 122, 123, 46 S.Ct. 41, 70 L.Ed. 193, the Court said: 'A proceeding in bankruptcy has for one of its objects the discharge of the bankrupt from his debits.

Summary of this case from In re Potter

In Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193, the denial of a discharge was affirmed, but upon the ground that a previous application for a discharge with objections thereto was before the court which had not been acted upon.

Summary of this case from In re Lipp

In Freshman v. Atkins, 269 U.S. 121, 46 S. Ct. 41, 70 L. Ed. 193, the bankruptcy court took judicial notice of the pendency of a former application for discharge, under a prior voluntary petition, and denied a discharge in a second proceeding in so far as creditors included in the former proceeding were concerned. It was urged that the objection could not be raised by the court, but only by an interested party.

Summary of this case from In re Miller

In Atkins, the bankruptcy referee in the debtor's first bankruptcy case had recommended that the debtor's discharge be denied, but the court had failed to act on the recommendation.

Summary of this case from In re Layman

In Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the Supreme Court established as a general rule that a debtor may not have two pending bankruptcy cases at the same time.

Summary of this case from In re Sorenson

In Atkins, a debtor was denied a discharge in one bankruptcy proceeding; yet, while that case remained open, the debtor filed a second petition seeking to discharge both the debts scheduled in the first case, as well as some new debts incurred after the filing of the first case. The Supreme Court only allowed the second petition with respect to the new debts; as the Supreme Court stated, “pendency of the first application precluded a consideration of the second in respect of the same debts.

Summary of this case from In re McMahan

In Atkins the debtor filed a voluntary petition under the Bankruptcy Act of 1898 on November 1, 1915 and timely applied for discharge. Freshman v. Atkins, 269 U.S. 121, 122, 46 S.Ct. 41, 41, 70 L.Ed. 193 (1925).

Summary of this case from In re Brown

In Freshman the Supreme Court instructed that an individual with a pending bankruptcy case cannot file a second bankruptcy case seeking to discharge the same debts.

Summary of this case from In re Myers

In Freshman, a second voluntary petition was filed which included, among others, all the creditors of the first still open bankruptcy. 269 U.S. at 122.

Summary of this case from In re Sanchez-Dobazo

In Atkins, the debtor filed a voluntary petition for relief in the year 1915 and applied for a discharge within the statutory time limit.

Summary of this case from In re Strohscher

In Atkins, the debtor filed a voluntary petition for relief in 1915 and applied for a discharge within the statutory time limit.

Summary of this case from In re Cowan

In Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the debtor filed a voluntary petition for relief in 1915 and, within the statutory time, applied for a discharge.

Summary of this case from In re Bullock

In Atkins, the debtor first filed a bankruptcy case on November 1, 1915 and then filed a second petition on November 11, 1922, while the first case was still open.

Summary of this case from In re Studio Five Clothing Stores Inc.

In Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the U.S. Supreme Court held that these traditional rules should be applied in a fair and discriminating manner.

Summary of this case from In re Szafranski

In Freshman, the referee recommended that the debtor's application for a discharge be denied. For some reason, the District Court never acted on the referee's report.

Summary of this case from In re Kosenka, (Bankr.N.D.Ind. 1989)

In Freshman v. Atkins, 269 U.S. 121, 124, 46 S.Ct. 41, 42, 70 L.Ed. 193 (1925) the Court addressed a similar situation and said "the court may well act of its own motion to supress an attempt to overreach the due and orderly administration of justice."

Summary of this case from In re Smith

In Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925), the Court noted that the pendency of a hearing on the issuance of a discharge precluded consideration of a discharge of the same debts in a second bankruptcy case.

Summary of this case from In re Tauscher

In Freshman, two voluntary bankruptcy petitions were filed by the debtor in federal district court. Freshman, 269 U.S. at 122, 46 S.Ct. at 41.

Summary of this case from Nugent v. Voest-Alpine Intern
Case details for

Freshman v. Atkins

Case Details

Full title:FRESHMAN v . ATKINS

Court:U.S.

Date published: Nov 16, 1925

Citations

269 U.S. 121 (1925)
46 S. Ct. 41
70 L. Ed. 193

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