dissenting: The decision of In re Myers, 119 Kan. 270, 237 Pac. 1026, is sound law and, in my opinion, the court should adhere to it. Syllabus ¶ 5 reads:
“Declaratory judgment: Where an offender under the worthless-check statute receives his discharge in federal proceedings in bankruptcy, such discharge is the equivalent of payment of his civil liability to the payee of the check, and may be pleaded as payment of the check in the proceedings authorized by R. S. 21-556, whereby the offender may procure an abatement of a criminal prosecution against him and his discharge therefrom.”
The foregoing statement of the law is clear and has specific application to the facts in the case at bar. It has been the law of this state since 1925. More important, however, is the fact that the foregoing rule of law is supported by sound logic and reasoning. It cannot be said to be clearly erroneous.
The trial court in its journal entry of September 7, 1961, found that the above entitled action was a prosecution under the “worthless check” statutes of the state of Kansas, and further found that the appellant, Lawrence Breitenbach, “has shown the right to abate said check or instrument.” (Emphasis added.) But the trial court overruled the appellant’s motion for an order staying and abating all proceedings therein until determination of the appellant’s bankruptcy in the United States District Court.
Thereafter, the appellant filed a motion to dismiss the action on the ground that he had obtained a discharge in bankruptcy. The journal entry of the trial court dated December 7, 1961, found the order of discharge attached to the appellant’s motion was a true and correct copy of said order of discharge made and entered on the *19515th day of November, 1961, in the United States District Court for the District of Kansas. The court further recognized its previous finding that the appellant “had shown the right to abate said check, as provided by G. S. 1949, 21-556.” It further ordered the appellant “to abate said check by paying said check and the costs” of the action, and overruled appellant’s motion to dismiss.
For the reasons hereafter assigned it is respectfully submitted the trial court should be reversed.
The appellant is charged with violation of G. S. 1949, 21-554, which provides:
“It shall be unlawful for any person, corporation, or partnership, to draw, make, utter, issue or deliver to another any check or draft on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of any such check or draft as aforesaid that he has no funds on deposit in or credits with such bank or depository with which to pay such check or draft upon presentation.” (Emphasis added.)
The right to procure an abatement of a criminal prosecution on a “worthless check” charge is provided in G. S. 1949, 21-556, as follows:
“That in any case where a prosecution is begun under this act, the defendant shall have a right, upon application made for that purpose before trial, to have said action abated by showing to the court or judge that he has had an account in said bank upon which said check or draft was drawn, thirty days next prior to the time said check or draft was delivered and that said check or draft was drawn upon said bank without intent to defraud the party receiving the same, and if the court shall so find, said action shall be abated and the defendant shall be discharged upon paying into cotut the amount of such check and the costs in said case.” (Emphasis added.)
From the foregoing sections it may be noted the appellant must have knowingly committed the offense in 21-554, supra, with which he is charged, and the trial court specifically found that the appellant delivered the check in question without intent to defraud the party receiving the same. The specific mandate of 21-556, supra, is that “if the court shall so find, said action shall be abated.” (Emphasis added.) This mandate is not preceded or followed by a condition or proviso. The language of the statute following this specific provision begins with the word “and.” It says “and the defendant shall be discharged upon paying into court the amount of such check and the costs in said case.” (Emphasis added.) The portion of the statute following the word “and” relates to payment and speaks of the appellant’s discharge from prosecution, not his right to abate.
*196It is recognized that the payment of a “worthless check” has no bearing upon a criminal prosecution under the provisions of 21-554, supra. Payment of the check relates solely to the civil liability of the maker of such check. The legal effect of the appellant’s discharge in bankruptcy would be that of payment. (G. S. 1949, 60-3602.) In the opinion of In re Myers, supra, it was said:
“. . . assuming the regularity of the bankruptcy proceeding, and assuming the absence of any issue of fraud in the bankruptcy court which might prevent the petitioner’s discharge in bankruptcy in due time, the legal effect of such bankruptcy discharge would be that of payment (R. S. 60-3602; Failor v. Wehe, 98 Kan. 325, 327, 158 Pac. 74; Bank v. Hoffman, 102 Kan. 465, 171 Pac. 13), and the petitioner could rely on such discharge as an equivalent of payment under R. S. 21-556.” (p. 275.)
On September 7, 1961, when the proceedings for the abatement of the check in question were conducted in the district court, the appellant had been adjudged a bankrupt. Payment by the appellant to the maker of the check in question would at that time have been impossible while his assets were under the supervision of the federal court in bankruptcy. The effect of the court’s decision herein was to place the appellant in a dilemma wherein the provisions of 21-556, supra, were absolutely unavailable to him. In other words, since he had been adjudged a bankrupt, he was required as a matter of necessity to stand criminal prosecution without any right to abate the prosecution, even though such check was shown to have been given without intent to defraud. This, in my opinion, violates the equal protection clause of the federal constitution, since it is only by the intervention of federal law that the state court places the appellant in this dilemma.
If a discharge under the federal bankruptcy act is payment to one creditor of the bankrupt, it is payment to all of his creditors similarly situated, and this includes the civil liability of the maker of a “worthless check” to the payee.
Under the court’s decision it is immaterial whether the payee of the check in question filed a claim as a creditor in the bankruptcy court for the amount of the check. If the claim was filed, partially allowed, and partially paid from the assets available in the bankruptcy court, could it be said that the district court had power to require full payment of the amount of the check in abatement proceedings under the provisions of 21-556, supra, where the court specifically found that the check was given by the maker without intent to defraud the party receiving the check? I think not. This tends to show the decision of In re Myers, supra, is sound.
*197The requirement under the provisions of 21-556, supra, that the district court specifically find the check or draft in question was drawn upon a bank without intent to defraud the party receiving the same, is adequate protection against the abuse of rights under the provisions of such statute. The judges of our trial courts must be presumed to be honest and act honorably in the administration of the laws of this state upon the facts and the evidence as presented in a given situation. The awkward posture of this case on appeal, by reason of the trial court’s finding that the check was not given with intent to defraud, should not alter the law in this state.
In my opinion, the appellant was entitled to a stay of proceedings until such time as the matter of his discharge in the bankruptcy court had been adjudicated. He sustained his burden of proof at the abatement proceedings which resulted in a finding and order of the district court granting him the right to abate the proceedings. This is not to say that the appellant would have been entitled to a stay of proceedings had the court made a finding and order that he had not shown such right to abate, but having made such showing and having shown that he had been adjudged to be bankrupt, the appellant was entitled as a matter of law to a stay of proceedings in the district court.
This would not leave the appellee without an adequate remedy at law. As a matter of fact, the appellee is notified of the appellant’s intention concerning abatement, of the fact that the appellant has been adjudged to be bankrupt, and of the fact that the appellant was seeking a discharge. Under these circumstances, the appellee could have made an appearance in the United States District Court in bankruptcy, and attempt to show that such debt was not, as a matter of law, a dischargeable debt. Insofar as the record here discloses, this the appellee did not do, nor was there any showing before the district court that the appellee had any intention of contesting the dischargeability of the debt.
It is respectfully submitted that the order of the district court entered on the 7th day of September, 1961, refusing to stay the abatement proceedings, the order entered on the 5th day of October, 1961, overruling the motion for a new trial, and the order entered on the 7th day of December, 1961, refusing to dismiss the action should be reversed.
Price, J., joins in the foregoing dissenting opinion.