Ostler Land Livestock Co. v. Brough , 111 Utah 336 ( 1947 )

I concur in the result. However, I am not persuaded that the lower court erred in holding that the order of the bankruptcy court approving the appraisal and setting aside the homestead exemption was, because of the dismissal of the proceedings, of no force and effect. I am of the opinion that under the facts of this case, where the debtor by amended petition asked to be adjudicated a bankrupt and subsequently voluntarily, with the consent of the creditor, procured a dismissal of the proceedings, the dismissal carried the entire matter, including incidental findings and orders, out of court, and left the debtor in the same position, in so far as affecting the rights of his creditors is concerned, as though no proceedings in bankruptcy had been initiated.

The dismissal under the circumstances, whether with or without prejudice, would have that effect. Such is the implication, if not in fact the holding, In re Bean, 6 Cir., 230 F. 405, 408, wherein the court said:

"The dismissal of the second petition in bankruptcy was not only voluntary, amounting only to that nonsuit which adjudicates nothing, but the meritorious point upon which the action of the court would have rested if that action had been invoked * * * did not involve and so could not have decided the question of partnership." See also, In re Glory Bottling Co. of New York,Inc., 2 Cir., 283 F. 110.

Since I am of the opinion that the orders in the bankruptcy proceeding were not res judicata in the instant case the question before the court in my opinion was whether at the date of the conveyances by Brough, the properties were worth substantially more than his homestead exemption. I agree with the opinion of Mr. Justice Wade to the effect that the evidence does not support a finding that they were.