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    DANCIGER v. SMITH, 276 U.S. 542 (1928)

    U.S. Supreme Court

    DANCIGER v. SMITH, 276 U.S. 542 (1928)

    276 U.S. 542

    DANCIGER et al.
    No. 224.

    Argued Feb. 27, 1928.
    Decided April 9, 1928.

    [276 U.S. 542, 543]   Messrs. I. J. Ringolsky and W. G. Boatright, both of Kansas City, Mo., for petitioners.

    [276 U.S. 542, 544]   Messrs. Jed C. Adams and W. B. Harrell, both of Dallas, Tex., for respondent.

    Mr. Justice SANFORD delivered the opinion of the Court.

    This suit was brought by Smith in the district court for Dallas County, Texas, to recover brokerage commissions claimed to be due him from Danciger and the Emerich Oil Co. He assigned part of this claim to his attorneys; and later assigned the remainder to two of his creditors as security for antecedent debts, agreeing to prosecute the suit in his name and account to them for the proceeds. [276 U.S. 542, 545]   More than four months thereafter he filed a voluntary petition in bankruptcy. He did not mention this claim in the schedules, and stated that he had no assets and that none of his property had been assigned for the benefit of creditors. He was thereupon adjudicated a bankrupt. No trustee was appointed for his estate; and he was granted a discharge.

    At the trial of the suit the defendants, in addition to their defenses on the merits, relied upon the defense, appropriately pleaded, that by reason of the proceeding in bankruptcy Smith had ceased to be the owner of the cause of action and was not entitled to prosecute the suit. This contention was overruled, and Smith recovered judgment. This was affirmed by the Court of Civil Appeals, 286 S. W. 633; and an application to the Supreme Court for a writ of error was denied, 116 Tex. 269, 289 S. W. 679.

    The petitioners contend that by permitting Smith to continue the prosecution of the suit after his adjudication in bankruptcy they were deprived of a right, privilege and immunity under the Bankruptcy Act. 1  

    The act provides, with certain exceptions not here material, that a trustee of the estate of a bankrupt, upon his appointment and qualification, shall be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, to all nonexempt property, including rights of action (section 70 (11 USCA 110)); and that the trustee may, with the approval of the court, be permitted to prosecute any suit commenced by the bankrupt prior to the adjudication ( section 11c (11 USCA 29)).

    It is clear that under these provisions an adjudication in bankruptcy, until followed by the appointment of a trustee, does not divest the bankrupt's title to a cause of action against a third person or prevent him from instituting or maintaining suit thereon. Thus, he may insti- [276 U.S. 542, 546]   tute and maintain such a suit before the election of a trustee. Johnson v. Collier, 222 U.S. 538, 539 , 32 S. Ct. 104; Christopherson v. Harrington, 118 Minn. 42, 45, 136 N. W. 289, 41 L. R. A. (N. S.) 276. Or. if no trustee is appointed. Rand v. Iowa Cent. Ry., 186 N. Y. 58, 60, 78 N. E. 574, 116 Am. St. Rep. 530, 9 Ann. Cas. 542; Griffin v. Mutual Life Ins. Co., 119 Ga. 664, 665, 46 S. E. 870, in which the opinion was delivered by Judge Lamar, later a member of this Court. And see Fuller v. New York Fire Ins. Co., 184 Mass. 12, 16, 67 N. E. 879; Gordon v. Mechanics' & Traders' Ins. Co., 120 La. 442, 443, 45 So. 384, 15 L. R. A. ( N. S.) 827, 124 Am. St. Rep. 434, 14 Ann. Cas. 886, and Schoenthaler v. Rosskam, 107 Ill. App. 427, 436. In Johnson v. Collier, supra, this Court said:

    It follows that Smith's title to the right of action was not divested by the proceeding in bankruptcy, no trustee having been appointed to whom it could pass; and that the Bankruptcy Act did not prevent him from subsequently prosecuting the suit to judgment.

    The doctrine of First National Bank v. Lasater, 196 U.S. 115, 119 , 25 S. Ct. 206, on which the petitioners rely-that a bankrupt who omits to schedule and withholds holds all knowledge of a valuable claim, cannot, after obtaining a discharge from his debts, assert title to such claim and maintain a suit thereon in his own right-has no application here; for in that case a trustee had been appointed to whom the right of action had passed.

    No other federal question is presented by the record. If, as urged by the petitioners, the assignments made by Smith were void as against his other creditors-who were not before the court-any question that may arise as to whether he holds the judgment for the benefit of his assignees or of his general creditors, may be determined in appropriate proceedings taken for that purpose. See Griffin v. Mutual Life Insurance Co., supra, 665 (46 S. E. 870). In any event the petitioners were not prejudiced.

    Judgment affirmed.


    [ Footnote 1 ] 30 Stat. 544, c. 541; U. S. C., tit. 11 (11 USCA).

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