Cohen v. Keller

AUGUSTUS N. HAND, Circuit Judge. The bankrupt appeals from two orders (1) entered on June 1, 1939, vacating an ex parte order of the District Court made on February 20, 1939 which had extended his time to file an application for discharge until March 16, 1939; (2) entered on June 23, 1939 denying his motion to fix a time within which his creditors should file objections to his discharge'under Section 14, sub. b of the Bankruptcy Act as amended by the Chandler Act, 11 U.S.C.A. § 32, sub. b. In my opinion the second order should be affirmed because Section 14, sub. b, is not made applicable to the proceeding by Section 6, sub. b, of the Chandler Act, 11 U.S.C.A. § 1 note, because it would not be “practicable” to require referees to mail notices in all proceedings pending in their offices fixing a time for filing objections to discharges of bankrupts. The question remains whether Section 14, sub. a, of the Act applies and the bankrupt was “unavoidably prevented” from filing his petition for a discharge within twelve months after the adjudication and therefore might properly obtain an extension so as to file his application within the next six months. In the present case, within twelve months after the adjudication, the bankrupt executed his petition for a discharge and left it with his attorney (who was not the attorney representing him on this appeal) with directions to file it. He was prevented from filing solely by the mistake of his attor [496] ney who insisted that it could not be made until the referee had determined certain disputes as to the rights of claimants to property of the bankrupt estate. It'seems to me that the selection of an attorney who is properly equipped to conduct bankruptcy proceedings can hardly be expected from the average bankrupt. Such a man is- quite likely to go to the first lawyer that he knows and approves of in general, or who has been recommended to him, and to entrust that person with any law business. In most cases the bankrupt knows little about such business and in many his inquiries, if made, would lead to little sound advice. I am willing to distinguish our decision of In re Taylor, 2 Cir., 22 F.2d 499, where the attorney was not merely mistaken in his advice but was completely neglectful in the matter, from the present case. Here the bankrupt did everything he could by executing his petition for a discharge and directing his attorney to file it ini time. The refusal of the attorney to file it because of a mistake of law was conduct, I believe, which bankrupts cannot be expected to control. Such conduct, I think, constituted unavoidable prevention of the bankrupt. The order vacating the extension of time to file an application for discharge is reversed. CLARK, Circuit Judge, concurs in a separate opinion. L. HAND, Circuit Judge, dissents, with opinion.