The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-01-26

appear 0
OPINION OF THE COURT BY WHITING. j.
The plaintiff brought his bill equity, against defendant
Poor forecose given to bond conditioned
performance of certain contained in
writing between the parties Upon hearing before
Judge of the First Circuit Court the bill dis
missed and decree made favor of defendant Poor The PLAIN
tiff appealed to the Supreme Court
After the percng of such appeal the defendant Poor was
duly adudged bankrupt by the Circuit Judge of the First
Circuit Court and now, this OF the Supreme Court
appears John Coburn who the bankruptcy OF Poor
and that he Cobu the duly elected and qualified assignee
In bankruptcy of Poor's estate.
The defendant Poor does appear does he suggest
appeal, his bankruptcy.
Chap D. Sec s. Laws, 1888, provides that Upon
filing petition Tin bankruptcy a civil suits pending
in relation and all executions laid upon bank
rupt's property shall be stayed"
We are of the opinion that being the foreclosure
of mortgage property although involving the question of
liability respond plaintiffs claim, the plaintiff
his claim against the property morgaged al
though by bankruptcy decree judgment
could against the defendant Poor personally,
binding the hands other than the
rone secured Inv this mortgage Surely a creditor rely
upon his mortgage security need prove any secured
claim in the bankrupt although in such case he can
any dividends from the assignee If the plaintiff began
his suit after the bankruptcy OF Poor the assignee would prob
ably made party IT, So far appears of record
in this case assignee would be and is interested in the result
for the decree stands release large amount OF the
bankrpfs property from the plaintiffs lien and make 1t avail
the general creditors And he would be entitled to be
notified and appear in this appeal
reasonable stay of civil suits necessary IN these bank
rupcy cases. of opinion that where the cause IN
the court can decU
the suit to proceed that the law providing for stay does
not require it be perpetual stay The
defendant by his subsequent bankruptcy prevent
the prosecution of plaintiffs appeal i'll this suit hen bank
rp seeking the establishment OF claim against
himself himself in the interest of the creditors may
well be allowed intervene in order to exclude claims which,
if established might reduce the estate otherwise available to
creditors The bankrupt also have interest III this appeal
The assignee should be notified appear but the
assignee in bankruptcy this having appeared, al
though the bankruptcy the stay of the appeal
should removed and the appeal heard by this court unless
the assignee sound present TO the contrary ne
mere fact of bankruptcy of Poor should longer stay the
appeal assignee has right appear and so tar as shown
To us ought appear herein The following cases may be re-
ferred
Mckay T. Funk, 81 Iowa Gel
Merritt =. GIiddeH, 80 Cal. 564.
Doe n. ChHdreSs 81 Wall. 642.
Sanford o. Sanford IS y. Y. 81.
Serao HijO T.. Hoffman,, II b. r. 124.
There having much delay bringing this appeal to
the Supreme Court unavoidable the part of counse notice
TO defendant Poor ought be given if he has yet been
notified.
Let the parties appear January 81 1897 for further pro
ceedngs.
Mdgo0n &c Edings for plaintiff
c. BrOtUn, for assignee