
    STATE v. NATIONAL BANK OF CLEBURNE et al.
    (No. 835—4540.)
    (Commission of Appeals of Texas, Section A.
    Dec. 1, 1926.)
    1. Bankruptcy <&wkey;42l(I) — Bankrupt is prima facie discharged’ from all provable debts existing prior to adjudication by discharge in bankruptcy.
    Discharge in bankruptcy prima facie releases bankrupt from all provable debts existing prior to adjudication.
    2. Bankruptcy &wkey;3l6(1) — Surety obligations on depository and tax collector’s bond held provable debts in bankruptcy.
    Bankrupt’s obligations, '■ as surety on depository bond by bank and on tax collector’s bond, for taxes deposited in bank, suspending operations before surety's adjudication as bankrupt, were provable debts in bankruptcy.
    3. Bankruptcy <&wkey;436(l) — Bankrupt must show notice by creditor of proceedings to be released from debt not duly scheduled (Bankruptcy Act, § 17a[3], being U. S. Comp. St. § 9601). . -
    Under’. federal Bankruptcy Act, § 17a(3,), being-U.-S. Comp. St. § 9601, providing that debt not duly scheduled shall not be discharged unless creditor had notice of proceedings, bankrupt has burden of showing notice or actual knowledge, in absence of due scheduling.
    4. Bankruptcy t&wkey;23 — Filing.of petition gives court jurisdiction in bankruptcy.
    Bankruptcy proceedings being in rem nature, filing of petition gives court jurisdiction.
    5. Constitutional law <&wkey;309(l) — Regularity of petition and schedules, in bankruptcy proceedings, makes further notice to creditor unnecessary to due process.
    Bankruptcy proceedings having in rem characteristics, regularity of petition and schedules makes further notice to creditor whose claim may be discharged nonessential to due process.
    6. Bankruptcy &wkey;>87 — Due scheduling of debt imparts notice of existence of bankruptcy . proceedings to creditor (Bankruptcy Act, § . I7a[3], being U. S. Comp. St. § 9601).
    Under Bankruptcy Act, § 17a(3), being U. S. Comp. St. § 9601, due scheduling of debt of itself imparts to creditor’ notice of existence of proceedings.
    7-, Bankruptcy <&wkey;29 — Tax collector’s bond on • which bankrupt was surety, giving name and Address of payee and describing bond, held properly scheduled.
    Tax collector’s bond on which bankrupt was surety, giving name and address of Governor to whom bond was payable, together with brief description of statutory bond, held properly scheduled in bankruptcy. ■ ‘
    8. Bankruptcy &wkey;>87— State had notice of bankruptcy proceedings by scheduling of tax collector’s bond, payable to governor, on which bankrupt was surety (Rev. St. 1925, arts.- 2544-*2558).
    Schedule of tax collector’s bond, given under Rev. St. 1925, arts. 2544 — 255S, on which bankrupt’was surety, giving name and address of Governor as nominal payee, was notice to state of .bankruptcy proceedings, acquired through notice tb Governor as its agent.
    9. Bankruptcy <§=>87 — Notice to state officers of. bankruptcy proceedings by fifing of bonds payable to them, on which bankrupt - was surety, held to put them on inquiry of rights of state (Rev. St. 1925, arts. 2544-2558).
    Notice .to state’s officers of bankruptcy proceedings scheduling tax collector’s bond and depository bond, given under Rev. St. 1925, arts. 2544r-2558, on which bankrupt was surety, put officers on inquiry as to bankrupt’s financial relations to state.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by the State against the National Bank of Cleburne and others. From the judgment, plaintiff appealed to the Court* of Civil Appeals, which certified questions to Commission of Appeals.
    Questions answered.
    Dan Moody, Atty. Gen., and John W. Goodwin, A?’st. Atty;. Gen'., for the State..
    Wm. 'Odell, ’of Fort Worth, and Walker "& Baker, of Cleburne, for appellees. .
   NICKELS, J.

The National Bank of Cle-burne, Johnson county, Tex., was duly selected “county depository” and qualified as such by execution, etc., of the required bond on April 14, 1921 — all in accordance with the terms of chapter 2, title 47, R. S. 1925. The penal sum of the bond is $2,208,956, and it is signed by J. W. Floore, Jr., and others, as sureties. O. O. Chrisman, county judge, is the nominal payee; it was duly approved by the commissioners’ court and the comptroller of public accounts, and it is of statutory form.

During the years of 1921 and 1922, A. D. Griffin was the duly elected, qualified, and acting tax collector for the county, and Floore was surety on his bond as such. This bond is in the penal sum of $65,852.47, Pat M. Neff, Governor, is named as payee, and the instrument is of the form required in article 7247, R. S. 1925.

All moneys representing taxes collected by Griffin were deposited by him with the depository bank, as required by said chapter 2, the credits therefor being made in an account styled “A. D. Griffin, tax collector.” In this account, moneys derived as state'taxes, county taxes, and various district taxes were credited, in bulk, and upon it Griffin checked in making his settlements with the state and county. The bank suspended on October 17, 1921, and its affairs were duly taken over and process of liquidation begun by the comptroller of the currency. On that date credits for “state taxes,” aggregating the sum of $9,261.-51, were included in the account.

October 18,1921, Floore was duly adjudged bankrupt in the District Court of the United States for the Northern district of Texas, and on October 14, 1922, he duly received discharge therein.

July 5, 1923, the state of Texas brought suit in the district court of Johnson county against the principal and sureties on the depository bond and therein sought'recovery-for the $9,261.51 mentioned. Floore set up his discharge in bankruptcy as a release of liability on the bond. The manner, in which the issue was raised, is thus stated in the certificate:

“The appellee alleged in his first amended original answer that he was duly adjudged bankrupt * * * October 18, 1921, and was duly discharged October 14, 1922; that all the deposits in the account involved were made prior to October 17, 1921; that the bond sued on was properly scheduled as a liability in the bankruptcy proceedings; that the ease was still pending in the bankruptcy court; and that no distribution of the estate had been made among the creditors; and further alleged that the appellant had notice of the bankruptcy proceedings prior 'to the discharge through the following persons: The tax collector of Johnson county; Hon. Pat. M. Neff, Governor; Johnson county, and O. O. Chrisman, the county judge; J. R. Keith, county attorney of Johnson county; Mr. Cliff Stone, Judge Tom L. Beauchamp, and Wallace Hawkins, assistants to the Attorney General. The appellant, in its supplemental petition, denied the allegations in the appellee’s amended answer.”

The evidence shows that Johnson county, through its county judge and commissioners, and Keith, Stone, Beauchamp, and Griffin had knowledge of the bankruptcy proceedings long before the discharge; but as to whether or not the Attorney General, Hon. W. A. Keeling, and the Governor, Hon. Pat M. Neff, had such actual knowledge the record is silent, except for Floore’s allegation and the state’s general denial. It appears that the bond sued on was thus scheduled by Floore in the bankruptcy proceeding:

“Schedule A. (5). Section 4. Accommodation Paper: Name of creditor — Johnson county, Cle-burne, Tex. The National Bank of Cleburne, Tex., was appointed official depository of Johnson-county, Tex., in April, 1921, and executed a depository bond for $2,000',060, signed by J. W. Floore, Jr., J. T. Falkenbury, G. C. Smith, J. R. Nail, J. D. Goldsmith, J. T. Jordan, J. G. Beasley, J. C. Blakeney, S. B. Norwood, all of Cleburne, Tex., as sureties. No collateral.”

The other bond (i. e., the tax collector’s bond) was thus scheduled:

“Schedule A. (5). Accommodation Paper. Section —: Governor of the state of Texas, Hon. Pat M. Neff, Austin, Tex. November 25, 1920, J. W. Floore, Jr., executed, as surety, the bond of A. D. Griffin, tax collector of Johnson county, for $65,352.47, and payable to the Governor of the state of Texas.”

The defense was sustained by the district court, and the case, upon the state’s appeal, is now pending in the Court of Civil Appeals, Second district.

That court , has certified the .following questions:

“(1) Was the schedule of the bond in the bankruptcy proceedings sufficient to discharge the claim sued on?
“(3) Are the facts found by this court sufficient in law to show notice to the governor of the bankruptcy proceedings?”

In a prima facie sense, the-discharge in bankruptcy so operated as to release Floore from all provable debts existing prior to the adjudication. Kreitlein v. Ferger, 238 U. S. 27, 35 S. Ct. 685, 59 L. Ed. 1184. Floore’s obligation upon the depository bond, as well as upon the tax collector’s bond, was a provable debt. 1 Collier on Bankruptcy (13th Ed.) p. 609. That apparent result was absolute in its nature unless (a) the debt was not duly scheduled or, (b) the creditor did not have notice or actual knowledge of the bankruptcy proceedings if the debt was not duly scheduled. Section 17a(3) of the Bankrupt Áct (U. S. Comp. St. § 9601). The latter contingency amounts to an “exception to the exception,” so that the bankrupt has the burden of showing notice or actual knowledge, in the absence of due scheduling. Hill v. Smith, 260 U. S. 592, 43 S. Ct. 219, 67 L. Ed. 419.

We merely assume the debt, in so far as it is evidenced by the depository bond, was not duly scheduled, although we are inclined to the opposed view, for we believe the state had notice.

Bankruptcy proceedings have an in rem nature. Hanover National Bank v. Moyses, 186 U. S. 181, 192, 22 S. Ot. 857, 46 L. Ed. 1113. Filing of the petition gives juris- ' diction. 2 Collier on Bankruptcy (13th Ed.) p. 1193. Because of the in rem characteristic, regularity of the petition and schedules makes further notice to the creditor, whose claim may be discharged, nonessential to due process. Hanover National Bank v. Moyses, supra. The fact of a due scheduling of a debt, of itself, imparts to the creditor notice of the existence of the proceedings. Collier, Ibid. Such is the necessary import of section 17a(3), for, according to its terms, notice or actual knowledge must be otherwise shown only when the debt has not been duly scheduled. If a debt has been duly scheduled, it would require perversion of the statute’s language to say that the creditor must have further notice in order to he constructively apprised of the proceedings.

The state’s funds which were in the hank at suspension were referred to twice in the schedules. Once, in respect to Floore’s suretyship for the depository, and,- once, in respect to his suretyship for the tax collector. The -latter relationship, undoubtedly, was properly scheduled. The bond was payable to the Governor, as required by statute, and the Governor’s residence is, by law, fixed at Austin, Tex. Hon. Pat M. Neff was the Governor. The creditor and the creditor’s residence were thus named in the schedule, together with a brief yet essentially complete description of the statutory bond itself. The Governor, therefore, as the nominal payee and as the chief executive of the state, had notice of the bankruptcy proceedings. The notice was acquired by him in his capacity of agent duly authorized and within his term of service; the notice therefore was to the state itself. Irvine v. Grady, 85 Tex. 120, 19 S. W. 1028.

“Wherever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge with the duty of using them are, in equity, equivalent to knowledge itself.” Cordova v. Hood, 84 U. S. (17 Wall.) 1, 8, 21 L. Ed. 587.

The state’s officers were given notice of the bankruptcy proceedings, and thus put up'on inquiry as to any and all of Floore’s financial relations to the state in ample time for them to have investigated the matter and to have proved its claim, to engage in all proceedings subsequent to the adjudication, and to have caused the state, to participate in all possible dividends and distributions of the estate. Under the Bankrupt Act and under the constitutional and statutory provisions concerning their offices, the duty to inquire existed and all essential means of knowledge were available.

Accordingly, we recommend that certified questions Nos. 1 and 3, each, be answered, “Yes.”

Other questions were certified, but, in view of the answers recommended for Nos. 1 and 3, they are immaterial.

GREENWOOD and PIERSON, JJ. The opinion of the Commission of Appeals, answering certified questions, is adopted and ordered certified to the Court of Civil Appeals.

GURETON, O. J., not sitting. 
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