A state court in which an action against a bankrupt upon a debt
provable in bankruptcy is pending must, on his application under
sec. 6106 of the Revised Statutes, stay all proceedings to await
the determination of the court in bankruptcy on the question of his
discharge unless unreasonable delay on his part in endeavoring to
obtain his discharge is shown or the court in bankruptcy gives
leave to proceed to judgment for the purpose of ascertaining the
amount due, even if an attachment has been sued out in the action
more than four months before the commencement of the proceedings in
bankruptcy and has been dissolved by giving bond with sureties to
pay the amount of the judgment which might be recovered. And if the
highest court of the state denies the application, and renders
final judgment against the bankrupt, he may, although he has since
obtained his certificate of discharge, bring a writ of error, and
his assignee may be heard here in support of the writ.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
The material facts, as appearing by the record of this case in
the Supreme Court of Illinois, are as follows:
On the 16th of March, 1877, the original plaintiffs, in
accordance with the statutes of Illinois and upon the affidavit of
one of them that the defendant was indebted to them in the sum of
$8,264 for services as attorneys at law, and that he was a resident
of Illinois, and was about fraudulently to conceal, assign, or
otherwise dispose of his property or effects so as to hinder or
delay his creditors, sued out from the Circuit Court of Cook county
a writ of attachment against him, upon which his real estate was
attached. On the 28th of March, 1877, in accordance with those
statutes, he dissolved the attachment by giving bond with sureties
to pay to the plaintiffs, within ninety days after judgment, the
amount of any judgment which might be rendered against him on a
final trial in the suit. On the 12th of April, 1878, a verdict was
returned for the plaintiffs in the sum of $3,500, and the defendant
moved the court to set it aside and grant a new trial. On the 7th
of May, 1878, he
Page 107 U. S. 632
filed in the cause a duly attested copy of an order, dated the
1st of May, 1878, adjudging him a bankrupt under the Bankrupt Act
of the United States.
On the 11th of May, 1878, before judgment on the verdict, the
defendant suggested the adjudication in bankruptcy (which was
admitted) and applied to the state court, under sec. 5106 of the
Revised Statutes, for a stay of proceedings to await the
determination of the court in bankruptcy upon the question of his
discharge. On the same day, the court denied this application, as
well as the motion for a new trial, and rendered judgment against
him on the verdict, and afterwards allowed a bill of exceptions
which stated the facts above recited. That judgment was affirmed by
the Appellate Court for the First District of Illinois on the 19th
of November, 1878, and by the Supreme Court of Illinois on the 18th
of November, 1879. The opinion of the Supreme Court is reported in
93 Ill. 77. On the 6th of January, 1880, the defendant sued out
this writ of error.
At October term, 1880, of this Court, the defendants in error
moved to dismiss the writ of error because at the time it was sued
out, the plaintiff in error had been discharged from the obligation
of the debt to them, and the assignee in bankruptcy moved to
substitute his name for that of the bankrupt as plaintiff in error.
By the papers submitted with these motions it appeared that the
assignment in bankruptcy was made on the 17th of June, 1878, and a
certificate of discharge granted to the bankrupt on the 15th of
September, 1879. The court overruled both motions, but granted
leave to the assignee to be heard by counsel at the argument on the
merits, as to all matters affecting the estate of the bankrupt.
The record clearly shows that a privilege under sec. 5106 of the
Revised Statutes was claimed by the original defendant, and was
denied by the highest court of the state. There can therefore be no
doubt of the authority of this Court to revise the judgment.
The section in question is as follows:
"No creditor whose debt is provable shall be allowed to
prosecute to final judgment any suit at law or in equity therefor
against the bankrupt until the question of the debtor's discharge
shall have been
Page 107 U. S. 633
determined, and any such suit or proceedings shall, upon the
application of the bankrupt, be stayed to await the determination
of the court in bankruptcy on the question of the discharge;
provided there is no unreasonable delay on the part of the bankrupt
in endeavoring to obtain his discharge, and provided also that, if
the amount due the creditor is in dispute, the suit, by leave of
the court in bankruptcy, may proceed to judgment for the purpose of
ascertaining the amount due, which amount may be proved in
bankruptcy, but execution shall be stayed."
The terms of this enactment are as broad and as peremptory as
possible. "No creditor whose debt is provable shall be allowed to
prosecute to final judgment" any suit thereon against the bankrupt,
and such suit "shall, upon the application of the bankrupt, be
stayed." This provision, like all laws of the United States made in
pursuance of the Constitution, binds the courts of each state as
well as those of the nation. Upon the application of the bankrupt
to the court, state or national, in which the suit is pending, it
is the duty of that court to say the proceedings "to await the
determination of the court in bankruptcy on the question of the
discharge" unless there is unreasonable delay on the part of the
bankrupt in endeavoring to obtain his discharge or unless, the
amount of the debt being in dispute, the United States court
sitting in bankruptcy gives leave to proceed to judgment for the
purpose of ascertaining that amount. If neither the bankrupt nor
his assignee in bankruptcy applies for a stay of proceedings, the
court may, of course, proceed to judgment.
Doe v.
Childress, 21 Wall. 642;
Eyser v. Gaff,
91 U. S. 521;
Norton v. Switzer, 93 U. S. 355.
The stay does not operate as a bar to the action, but only as a
suspension of proceedings until the question of the bankrupt's
discharge shall have been determined in the United States court
sitting in bankruptcy. After the determination of that question in
that court, the court in which the suit is pending may proceed to
such judgment as the circumstances of the case may require. If the
discharge is refused, the plaintiff, upon establishing his claim,
may obtain a general judgment. If the discharge is granted, the
court in which the suit is pending may then determine whether the
plaintiff is entitled to a special
Page 107 U. S. 634
judgment for the purpose of enforcing an attachment made more
than four months before the commencement of the proceedings in
bankruptcy, or for the purpose of charging sureties upon a bond
given to dissolve such an attachment. But so long as the question
of the discharge in bankruptcy is undetermined, the suit cannot,
against the objection of the bankrupt or his assignee in
bankruptcy, proceed for any purpose except in one of two events --
an unreasonable delay of the bankrupt in endeavoring to obtain his
discharge or an order of the court in bankruptcy granting leave to
proceed for the single purpose of ascertaining the amount due.
The result required by the very words of the statute is
confirmed by a consideration of the reasons upon which it rests.
Its purpose is not merely to protect the bankrupt, in case he
obtains a certificate of discharge, from having the original cause
of action against him merged in a judgment, the right of action
upon which might not be barred by the discharge, but to prevent
him, so long as the question of his discharge is undetermined, from
being harassed by suit upon any debt provable in bankruptcy,
whether it would or would not be barred by a certificate of
discharge and whether the attachment or other security obtained in
the suit would or would not be affected by the proceedings in
bankruptcy, and also to afford to the assignee in bankruptcy, to
whom all the property of the bankrupt has passed, opportunity to
assume the defense of the suit, and contest the existence and
amount of the plaintiff's claim, and the validity of his
attachment.
This view, which is supported alike by the words and by the
reason of the statute, is in accordance with the preponderance of
the decisions in the highest courts of the several states, and in
the district courts of the United States, as shown by the cases
cited in the argument.
*
The plaintiffs' debt being provable in bankruptcy, no
unreasonable delay on the part of the bankrupt in endeavoring to
obtain his discharge being shown, and the court in bankruptcy
Page 107 U. S. 635
having granted no leave to proceed to judgment for the purpose
of ascertaining the amount due, the decision of the state court
denying the application, made by the bankrupt before judgment, for
a stay of proceedings to await the determination of the question of
his discharge, and rendering a general judgment against him, was
erroneous, and he had the right to sue out and prosecute a writ of
error to reverse it. The assignee in bankruptcy has also been
permitted to be heard in support of the writ of error, because of
his authority and duty to defend the estate of the bankrupt against
claims and attachments which he believes to be invalid.
The result is that the judgment of the Supreme Court of Illinois
must be reversed, and the case remanded to that court for further
proceedings in conformity with this opinion.
The judgment of the state court being reversed for the reason
that it denied the stay of proceedings to which the original
defendant was entitled under the provisions of the Bankrupt Act
until the question of his discharge in bankruptcy should have been
determined, there is no occasion to consider the question (which
may perhaps depend upon the statutes, or the practice of the
state), whether it will be within the authority of the court in
which the suit is pending, now that the defendant has obtained his
discharge in bankruptcy, to render a special judgment in favor of
the plaintiffs for the purpose of charging the sureties on the bond
given to dissolve the attachment; or any other question which may
hereafter arise upon the production by the defendant of his
certificate of discharge, or upon the suggestion of the assignee in
bankruptcy.
Judgment reversed.
*
Metcalf's Case, 2 Benedict 78;
Rosenberg's
Case, 3 Benedict 14;
Penny v. Taylor, 10 Bank.Reg.
200;
Whitney's Case, 18 Bank.Reg. 563;
Ray v.
Wight, 119 Mass. 426;
National Bank of Clinton v.
Taylor, 120 Mass. 124;
Towne v. Rice, 122 Mass. 67;
Page v. Cole, 123 Mass. 93;
Seavey v. Beckler,
128 Mass. 471;
McKay v. Funk, 37 Ia. 661;
Bratton v.
Anderson, 5 S.C. 504;
Cohen v. Duncan, 64 Ga.
343.