Scheidt v. Goldsmith

Mr. Jdstice Waterman delivered the opinion of the court. A bankrupt before his discharge is, as to his estate, civiliter mortuus. Bump on Bankruptcy, Eleventh Ed., 337; Lacy, Terrid & Co. v. Rockett, 11 Ala. 1002; Barron v. Newberry, 1 Bissell, 149; Cannon v. Wellford, 22 Grattan, 195; Abernathy v. Phillips, 82 Va. 769-772. If, as is urged by appellee, his bankrupt estate was not equal to the exemptions allowed to him by the bankrupt law, such fact might have been made to appear to the Circuit Court. Nothing of the kind was shown, while it did appear that his claim against appellant was not scheduled. We do not understand how appellee can claim as exempt, property not scheduled, and consequently a thing concerning which the bankrupt court can not be presumed to have made an order of exemption. Being civiliter mortuus, appellee could not commence or prosecute his suit against appellant, and had such fact been made known to the court the suit would have been dismissed. The court should have set aside the order dismissing the appeal. Such error of fact could at common law have been reached by writ of ooram nobis. The order of the Circuit Court refusing to set aside its order of dismissal must be reversed and the cause remanded.