A debtor, adjudged an insolvent upon his own petition, under R. S., c. 70, §§ 15 and 16, failed or neglected to furnish the messenger, with a list of assets and schedule of Ms creditors, in season to give them notice of the first meeting. He went out of the state, for temporary purposes, about the time he
When the first warrant was returned, one of his creditors filed a motion to dismiss the proceedings; but no reason was stated in the motion as the grounds for dismissal. The court ordered a hearing on the motion, to take place upon the return day of the second warrant. When the messenger returned the second warrant, no further proceedings took place under it, but the court proceeded to hear the motion to dismiss ; and it was granted.
The debtor now seeks by his bill, under § 13, to have these proceedings, ending in a dismissal, revised and his case restored.
We think the court below erred in dismissing the case. No reasons, in the motion to dismiss, were assigned, from which it appears upon what grounds the action of the court was predicated. The facts upon which the court must have passed are not proved. We are, therefore, unable to determine whether the dismissal was ordered under a mistake of the law, or a mistaken exercise of discretionary authority. Without deciding what power resides in a court of insolvency, in the absence of any statute provision, to dismiss a petition because of laches of the petitioner, we think the case as presented on the bill, shows a dismissal without a cause being assigned.
Doubtless, at the hearing upon the motion, reasons were orally given, which were sufficient to induce the court to make the decree here complained of; but the defendants have failed to show what those reasons were. The decree of dismissal is in the nature of a judgment. The particular state of facts necessary to sustain it will not be presumed. If such facts do not appear in the jurisdiction exercised by courts of record, dependent upon special statutes, the judgment will be treated as void. Freem. Judgments, § 123.
It has been held that a voluntary bankrupt cannot withdraw his petition at his own pleasure, but must show good reason for doing so. The creditors have an interest in the proceedings from
For these reasons, we think the decree complained of can not be sustained and should be reversed.
The defendants urge the fact that the plaintiff does not claim or prove he was injured by the dismissal of his petition. We are not convinced that this is the correct view of the law. The debtor and his creditors were improperly deprived, by the decree, of their legal rights under the statute, and it is not, therefore, necessary to consider how they may have been otherwise affected.
We do not deem it necessary to determine the effect which the issuing of a second warrant had upon the motion to dismiss. It is evident that both could not be granted, at the same time, and remain in full force and effect.
As the bill concerns two of the defendants, in their official capacity, no costs should be taxed against them. Costs are allowed against the other defendant.
Bill sustained.