Mizrahi v. Miscione

SHINN, J.

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The appeal is from a judgment establishing a claim against the estate of John V. Miscione, deceased, after its rejection by defendant administrator. The claim was rejected and the action was defended upon the ground that Miscione had been declared a bankrupt and had been discharged from all his debts. The court found that Mizrahi or his attorneys had no notice or knowledge of the bankruptcy proceedings, and concluded that plaintiff’s debt had not been discharged. The finding was based upon the failure of Miscione to properly list the judgment debt in his schedules.

Section 7 of the Bankruptcy Act reads in part: “(a) The bankrupt shall ... (8) prepare, make oath to, and file in court ... a list of all his creditors, . . . showing their residences or places of business, if known, or if unknown that fact to be stated, the amount due. . . .” (11 U.S.C., § 25, subd. a(8).)

Section 17 reads: “A discharge in bankruptcy shall release a bankrupt from all of his provable debts, . . except such as . . . (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; . . .” (11 U.S.C., §35, subd. a(3).)

The judgment debt was scheduled as follows: “34. Morris I. Mizzachi [sic] $4,500.00, c/o Louis Most, Attorney at Law, 328 S. Beverly Dr., Beverly Hills, Calif. Action for damages filed

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in 1949 in Santa Monica Superior Court case No. 2362. Judgment entered in 1951.” The court clerk mailed a notice of the first meeting of creditors addressed as stated in the schedules.

The reason for stating Miscione’s address as Most’s office was that in the action in which the judgment was rendered Most, Jerry Berk and Lester Bise, with offices at 629 South Hill in Los Angeles, California, were Mizrahi’s attorneys of record. Most also maintained an office in Beverly Hills.

Liberally construed, appellant’s arguments appear to be (1) in bankruptcy matters notice to a creditor’s attorney is notice to the creditor, (2) actual knowledge of a creditor’s attorney of the pendency of a bankruptcy is knowledge of the creditor, (3) Most was Mizrahi’s attorney and the notice which came to Most’s office was notice to Most of the pendency of the bankruptcy, (4) Most’s office was the business address of Mizrahi in all matters relating to the judgment and (5) the notice imparted to Most actual knowledge of the pendency of the bankruptcy and his knowledge was imputed to Mizrahi.