JOHNSON
v.
COLLIER
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A bankrupt who files a petition may institute and maintain a lawsuit on a cause of action prior to the trustee's election, despite the filing operating as an attachment on the bankrupt's property, because the bankrupt retains defeasible title until the trustee is appointed and qualified. The Supreme Court held that permitting the bankrupt to sue during the interim period between petition filing and trustee election serves the interests of all parties by preventing loss of recoverable assets and allowing the trustee to later intervene or abate the action as circumstances warrant.
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Mr. Justice Lamar,
after making the foregoing statement, delivered the opinion of the court.
The trustee, with the approval of the court, may prosecute any suit commenced by the bankrupt prior to the adjudication. (§ 11, c.) But the statute is otherwise silent ás to the right of the bankrupt himself to begin a suit in the time which intervenes between the filing of the petition and the election of the trustee. There is a conflict in the conclusions reached in the few cases dealing with this question. Rand v. Sage, 94 Minnesota, 344; Rand v. Iowa Central R. Co., 186 N. Y. 58; Gordon v. Mechanics’ Insurance Co., 120 Louisiana, 441.
While for many purposes the filing of the petition operates in the nature of an attachment upon choses in action and other property of the bankrupt, yet his title is not thereby divested. He is still the owner, though holding in trust until the appointment and qualification of 'the trustee, who thereupon becomes “vested by operation of law with the title of the bankrupt” as of the date of adjudication. (§ 70.)
Until such election the bankrupt has title — defeasible, but sufficient to authorize the institution and maintenance of a suit on any causé of action otherwise possessed by him. It is to the interest of all concerned that this should be so. There must always some time elapse between the filing of the petition and the meeting-of the creditors. During that period it may frequently be important that action should be commenced, attachments and garnishments issued, and proceedings taken to recover what would be lost if it were necessary to wait until the trustee was elected. The institution of such suit will result in no harm to the estate. For if the trustee prefers to begin a new action in the same or another court in his own name, the one previously brought can be abated. If, however, he is of opinion that .it would be to the benefit of the creditors, he may intervene in the suit commenced by the bankrupt, and avail himself of rights and priorities thereby acquired. Thatcher v. Rockwell, 105 U. S. 467.
If, because of the disproportionate expense, or uncertainty as to the result, the trustee neither sues nor intervenes, there is no reason why the bankrupt himself should not continue the litigation. He has an interest in making the dividend for creditors as large as possible, and in some States the more direct interest of creating a fund which may be set apart to him as an exemption. If the trustee will not sue and the bankrupt cannot sue, it might result in the bankrupt’s debtor being discharged of an actual liability. The statute indicates no such purpose, and if money or property is finally recovered, it will be for the benefit of the estate. Nor is there any merit in the suggestion that this might involve a liability to pay both the bankrupt and the trustee. The defendant in any such suit can, by order of the bankrupt court, be amply protected against any danger of being made to pay twice. Rand v. Iowa Central R. Co., 186 N. Y. 58; Southern Express Co. v. Connor, 49 Georgia, 415.
There was no error in holding that the bankrupt had title to the cause of action and could institute and maintain suit thereon.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Meyer v. Fleming, 327 U.S. 161 (U.S. 1946)…f the fact that he has become a bankrupt. Thatcher v. Rockwell, 105 U. S. 467, 469-470. Title to the claim vests, of course, in the bankruptcy trustee.4 He is in position to take control of the litigation. He may, as indicated in Johnson v. Collier, 222 U. S. 538, 540, start a new suit5 and cause the old one to be abated, or intervene in the old one6 and obtain such benefits as it affords.7 The choice may indeed be a valuable one. Rights might be lost if the earlier , suit were abated. And the speculative na…
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England v. Morgan J. Doyle, 281 F.2d 304 (9th Cir. 1960)…of dominion and control of the property itself, in the absence of either the appointment of a marshal by the bankruptcy court to take charge of the property or the issuance of a restraining order preventing its disposition. Johnson v. Collier, 1912, 222 U.S. 538, 32 S.Ct. 104, 56 L.Ed. 306; Danciger and Emerich Oil Co. v. Smith, 1928, 276 U.S. 542, 48 S.Ct. 344, 72 L.Ed. 691; In re Press Printers and Publishers, 3 Cir., 1926, 12 F. 2d 660. In this instance, no receiver or marshal was ever appointed nor was…
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Danciger & Emerich Oil Co. v. Smith, 276 U.S. 542 (U.S. 1928)…s 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 institute [*546] and maintain such a suit before the election of a trustee. Johnson v. Collier, 222 U. S. 538, 539; Christapherson v. Harrington, 118 Minn. 42, 45. Or, if no trustee is appointed. Rand v. Iowa Cent. Ry., 186 N. Y. 58, 60; Griffin v. Mutual Life Ins. Co., 119 Ga. 664, 665, in which the opinion was delivered by Judge Lamar, later a member of t…
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- Thatcher v. Rockwell, 105 U.S. 467 (U.S. 1881)