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untary proceeding, and on July 7, 1903, filed a petition in the voluntary proceeding for a discharge from these debts. The court appointed August 3, 1903, for a hearing of this petition. On August 5, 1903, a petition of the trustee of the estate of the bankrupt in the involuntary proceeding, which set forth its course and condition, was presented to the court in the voluntary proceeding, and it issued an order that the bankrupt should show cause why the voluntary should not be consolidated with the involuntary proceeding, and why all proceedings relating to the closing of the estate and to the application for the discharge should not be conducted in the latter. Upon the return day of this order the application of the bankrupt for his discharge and the petition of the trustee came on to be heard. Counsel for the respective parties appeared, and a decree was rendered, which denied the application for the discharge and dismissed the voluntary proceeding without prejudice to the right of the bankrupt to commence another after the involuntary proceeding should be closed.

The salient facts which condition the determination of the chief question in the case are, therefore, that there was an involuntary proceeding in bankruptcy pending, in which the bankrupt had disobeyed the order of the referee, and had failed to apply for a discharge within 12 months after his adjudication, and that he had instituted a voluntary proceeding, and had there applied for a discharge from the same debts scheduled and provable in the involuntary proceeding. The failure of the bankrupt to apply for a discharge from his debts in the involuntary proceeding within 12 months after the adjudication foreclosed his right to such a discharge. It is only within that time that he may, under the bankruptcy law, make a lawful application to be relieved from his debts. The record of his failure to make the application in that proceeding was, in effect, a judgment by default in favor of his creditors to the effect that he was not entitled to a discharge from their claims. A judgment by default renders the issue as conclusively res adjudicata as a judgment upon a trial. The result is that the question whether or not the bankrupt was entitled to be discharged from the claims of the creditors scheduled and provable in the involuntary proceeding was conclusively determined in an action between them and the bankrupt by the record of his failure to apply for a discharge in that proceeding. But the parties to the voluntary were the same as to the involuntary proceeding, for Kuntz scheduled the same claims and creditors, and the trustee who objected to his discharge was the legal representative of the latter. The bankrupt's application for a discharge in the voluntary proceeding presented the same issue which had been conclusively determined against him in the involuntary proceeding, and there was no error in the refusal of the court below to reverse the former judgment and grant the application.

The denial of an application for a discharge from debts provable in proceedings under one petition in bankruptcy under the act of 1898 renders the issue of a right to a discharge from those debts in a proceeding under a subsequent petition res adjudicata. A failure to apply for a discharge within 12 months after the adjudication in

131 F.-46.

the earlier proceeding has the same effect. Gilbert v. Hebard, 8 Metc. (Mass.) 129; In re Drisko, Fed. Cas. No. 4,090; In re Herrman (D. C.) 102 Fed. 753, 754; Id., 46 C. C. A. 77, 106 Fed. 987, 988. It is said, however, that the dismissal of the voluntary proceeding was, in any event, erroneous, and unauthorized. Why was it so? The record does not disclose that the bankrupt brought any property to the court to be distributed among his creditors when he presented his petition for a second adjudication in bankruptcy. The sole purpose of that proceeding, so far as we may learn it from the record presented here, was to enable the bankrupt to raise the very issue which the record in the involuntary proceeding had conclusively determined—the issue whether or not he was entitled to a discharge from the debts there scheduled and provable. The voluntary proceeding was in fact nothing but a suit in equity to obtain a discharge. The second adjudication in bankruptcy, the appointment of the trustee, his report, and every other act in that proceeding were nothing but steps in the progress of the suit for the discharge. For any other purpose they were both farcical and futile. As there was no equity in the suit for the discharge, and the bankrupt was entitled to no relief in it, it was properly dismissed. A voluntary proceeding in bankruptcy for the sole purpose of obtaining a discharge which a prior involuntary proceeding has conclusively determined that the bankrupt is not lawfully entitled to presents no ground for relief, is vexatious and futile, and should be dismissed. In re Fiegenbaum, 121 Fed. 69, 57 C. C. A. 409.

Other objections to the decree are that the application for the discharge was improperly denied because no specifications of objections. to the discharge were ever made, that the order to show cause was an irregular proceeding, that it was not properly served on the bankrupt, and that the court was without power to dismiss the voluntary proceeding. But the disclosure by the petition of the trustee that the issue of the discharge of the bankrupt was conclusively determined was a sufficient and fatal objection to the application for it, and any other would have been useless. An order to show cause why a certain act should not be done or a certain course pursued is the regular and approved method of giving notice of contemplated action to parties to suits and proceedings in equity and bankruptcy, and the terms of this order were sufficiently broad and general to suggest notice of, or to warrant a dismissal of, the proceeding and a denial of the discharge. It is true that the record fails to disclose that the order to show cause was ever served upon the bankrupt, but his counsel made a general appearance for him at the hearing upon it, and this was a waiver of any defect or failure in its service.

Nor was the court without power to dismiss the voluntary proceeding. That proceeding was a mere device to evade the order of the referee and to secure indirectly what the bankrupt evidently despaired of obtaining otherwise. It entailed unnecessary expense. and vexation upon the creditors and upon the court. Its continuance was a constant menace and annoyance to the creditors, and there was no sound reason for its existence. Ample power to dismiss it, even after the adjudication in bankruptcy, was vested in the

District Court under section 2 of the bankrupt act of July 1, 1898, c. 541, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420].

The decree below is affirmed.

BROWN v. ARNOLD.

(Circuit Court of Appeals, Eighth Circuit. July 18, 1904.)

No. 2,049.

1. ATTORNEYS AT LAW-AUTHORITY PRESUMED.

The assumption by an attorney at law of authority within the scope of the ordinary power of a practicing lawyer to act for a party to an action or suit is presumptive proof of actual authority to so act. The power assumed by an attorney at law in the conduct of an action is valid until disproved, not void until proved.

2. SAME-AUTHORITY AFTER JUDGMENT-GENERAL RULE EXCEPTIONS.

While the general rule is said to be that the authority conferred upon a lawyer by his retainer in an action or suit ceases when the judgment or decree is rendered, there are many exceptions to this rule, and in the actual practice of the law it is frequently disregarded. Some of the established exceptions are that after judgment or decree the authority of the attorney for the prevailing party to collect or enforce it, his authority to receipt for its proceeds and to discharge it, his authority to admit service of a citation to review it, and his authority to oppose any steps that may be taken within a reasonable time to reverse it, continue.

3. SAME-AUTHORITY TO STIPULATE AFTER JUDGMENT.

The retainer of an attorney at law to conduct an action confers upon him authority to stipulate with opposing counsel after the rendition of judgment in favor of his client, and after the expiration of the term of court, but within the time for procuring a writ of error, that the case shall abide the final decision of another action which involves the same question, and is conducted by the same attorneys.

4. EQUITY-ADEQUATE REMEDY AT LAW.

The remedy at law whch prohibits relief in equity must be “as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." An action for damages for the breach of a stipulation that an action at law which has passed to judgment shall abide the final decision of another action is not as practical and efficient to attain the ends of justice as a suit in equity for specific performance of the contract, where the final decision of the other action requires a reversal of the judgment. The action for damages does not furnish a remedy so adequate that it precludes relief in equity.

5. LACHES-NOT ORDINARILY APPLICABLE WITHIN LIMITATION OF ANALOGOUS ACTION AT LAW.

Laches is of the nature of estoppel. In the absence of extraordinary circumstances, such as many innocent purchasers, radical changes in condition or value, or loss of evidence, it is inapplicable to suits in equity within the time limited for the commencement of analogous actions at law. (Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the Western District of Missouri.

For opinion below, see 127 Fed. 387.

This appeal challenges a decree which sustained a demurrer and dismissed a bill exhibited by Edwin F. Brown, receiver of the First National Bank of Se

12. See Attorney and Client, vol. 5, Cent. Dig. §§ 129, 130, 176, 204.

dalia, against John S. Arnold, for the purpose of enforcing specific performance of a stipulation made between Parry L. Deweese, the former receiver of this bank, and James T. Montgomery and William M. Williams, the attorneys for Arnold, to the effect that the case of Deweese, receiver, against Arnold should abide the result of the final decision of the case of Deweese, receiver, against Martha E. Smith and Sarah E. Cotton. The bill set forth these facts: In 1889 Martha E. Smith and Sarah E. Cotton were the owners of 100 shares of the capital stock of the First National Bank of Sedalia, and the defendant. Arnold, was the owner of 20 shares of that stock. Deweese, the receiver of the bank, brought separate actions against Smith and Cotton, Arnold, and about 35 other stockholders of that bank to recover a second assessment upon their stock, which had been levied by the Comptroller of the Currency. Montgomery and Williams had been retained by all these stockholders, and had made the same answer to the petition in each of the cases. The receiver made a motion for judgment in each of the cases, that motion was denied, the receiver declined to plead farther, and the court rendered a judgment that the plaintiff should take nothing by his action, and that the defendant in each case should recover his costs of the plaintiff. These judgments were rendered in 1899, and after the term of court at which they were entered had expired the attorney for Deweese and Montgomery and Williams as attorneys and solicitors for each of the defendants in all the cases made a written stipulation that the receiver should sue out a writ of error from the judgment rendered in the case against Smith and Cotton, and that all the other cases against the other stockholders in which the judgments had been rendered in favor of the defendants should abide the result of the final decision in the case of Deweese, receiver, against Smith and Cotton. Thereupon such a writ of error was procured, and that judgment was reviewed and reversed by the Circuit Court of Appeals (106 Fed. 438, 45 C. C. A. 408), and its judgment was affirmed by the Supreme Court (23 Sup. Ct. 845, 47 L. Ed. 344). This affirmance was made on March 17, 1903. The attorney for the receiver lost the stipulation, and in March, 1903, he set forth the fact that the stipulation was made and had been lost, and moved the Circuit Court to redocket the case against Arnold, and allow it to stand according to the terms of the stipulation until the final decision in Deweese against Smith and Cotton, and this motion was denied. On August 15, 1903, the receiver exhibited the bill here in question, wherein he prays upon the facts which have been recited that the defendant be compelled to specifically perform the stipulation to the effect that the case against him should abide the final decision of the case against Smith and Cotton.

Wm. S. Shirk, for appellant.

P. H. Sangree, Henry Lamm, John Montgomery, Jr., and Lee Montgomery, for appellee.

Before SANBORN and VAN DEVANTER, Circuit Judges, and AMIDON, District Judge.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

Specific performance of the stipulation between the receiver and the appellee that the latter's case should abide the final decision of the action between the receiver and Smith and Cotton was denied by the Circuit Court upon three grounds: (1) Because the attorneys for Arnold had no authority to make the agreement evidenced by the stipulation on his behalf; (2) because the receiver had an adequate remedy at law; and (3) because his attorney had been guilty of laches. The case of Arnold, the case of Smith and Cotton, and the cases of 35 other stockholders whom the receiver had sued involved the same issue of law, which had been framed and tried by the same attorneys. Judgments had been entered in these cases in favor of the defendants. The term of court at which

they were rendered had expired. Several months yet remained. within which the receiver might lawfully procure writs of error to reverse these judgments. Then it was that the stipulation which lies at the basis of this suit was made and signed by the attorneys for all the parties to the litigation. It was a rational and salutary agreement. It saved to the litigants the expenses of the prosecution of 36 writs of error, and if it is performed it will produce without that unnecessary expense the same result that a review of all the cases and that additional expense would have effected. Obviously the performance of the agreement ought to be enforced unless some rule of law or of equity presents an insuperable obstacle.

It is said that the attorneys for Arnold were without authority to make the stipulation, because judgment had been rendered in his favor, and the term of court at which it was entered had expired; that when the judgment was recorded and the term closed the power of Arnold's attorneys to act for him, derived from their original retainer, ceased, and a new warrant of attorney was indispensable to their authority to sign the stipulation. There are two answers to this contention. In the first place, if a new warrant of attorney was requisite after the judgment was rendered, the legal presumption is that the attorneys had obtained it. The bill contains an averment that they agreed to and signed the stipulation as the solicitor and counsel of Arnold. The presumption is that they did not represent themselves to be that which they were not. The stipulation was within the scope of the general power of attorneys who are conducting several cases of a single class which involve the same issue. Stone v. Bank of Commerce, 174 U. S. 412, 422, 19 Sup. Ct. 747, 43 L. Ed. 1028; Scarritt Furniture Co. v. Moser, 48 Mo. App. 543, 548; Ohlquest v. Farwell, 71 Iowa, 231, 32 N. W. 277; Eidam v. Finnegan, 48 Minn. 53, 50 N. W. 933, 16 L. R. A. 507. They were officers of the court. Their signatures to the stipulation constituted prima facie evidence of their authority to execute it. The assumption by an attorney at law of authority within the scope of the general power of a practicing lawyer to act for a party to an action or suit is always presumptive proof of his actual authority to do so. The authority assumed by an attorney at law to act for a party in court is valid until disproved, not void until proved. The burden was upon the defendant to establish by answer and evidence that his attorneys were without the authority which they assumed. In the second place, while the general rule is said to be that the authority derived by an attorney at law from a general retainer to conduct a litigation on behalf of his client ceases when the judgment is rendered, there are many exceptions to this rule, and in the actual practice of the law it is at least doubtful whether it is not more honored in the breach than in the observance. Among the acknowledged exceptions to it are the authority of the attorney for the party who prevails in the judgment to collect it, his authority to receipt for its proceeds and to discharge it, his authority to admit service of a citation issued upon a writ of error or appeal to review it, and his authority to oppose any steps that may be taken within a reasonable time by the defeated party to reverse it. Berthold v.

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