Majority
p. 450[No. 5103.] CHARLES COLLINS et al. v. N. SCHEELINE et al.
Headnote
Action against a Bankrupt while Proceedings are Pending.—If a debtor has been declared a bankrupt under the provisions of the act of Congress, a creditor, whose claim has been proved before the Commissioner in Bankruptcy, cannot commence an action against him to recover judgment on the claim before'the proceedings in bankruptcy have been determined, without permission of the Court in which the bankruptcy proceedings are pending.Appeal from the District Court, Third Judicial District, City and County of San Francisco.
February 1st, 1869, the defendants gave the plaintiffs two promissory notes due four months after date. On the 31st day of October, 1869, one M. H. Myers, a creditor of the defendants, petitioned the District Court of the United States for the District of California to have the defendants declared bankrupt. On the 9th day of November following, the Court adjudged the defendants to be bankrupt, and on the 17th day of December, 1869, Henry C. Hyde was appointed assignee." On the 22nd day of September, 1872, the plaintiffs proved their claim before the Commissioner in Bankruptcy.
On the 13th day of January, 1875, the plaintiffs brought this action to recover judgment on the notes. Up to the time of the commencement of the action, no further proceedings had been taken in the bankruptcy proceedings. The Court rendered judgment for the plaintiffs, and the defendants appealed.
Howe & Rosenbaum, for the Appellants.
8. M. Wilson, for the Respondents.
This action was prematurely brought. It does not appear that the proceedings in bankruptcy have been determined. The action could have been commenced only on obtaining permission of the Court of Bankruptcy. (Rev. Stats. U. S. sec. 5105; Bump on Bankruptcy, p. 685; Dingee v. Becker, 9 Bank. Reg. 508; S. C. Leg. Int. 156.)
Judgment reversed, and cause remanded.