holding that when “an order is set aside as improvidently granted, the prior status of the case is restored and the situation is the same as though the order or judgment is the same as though the order or judgment had never been entered”
How later courts described this case
- holding that when “an order is set aside as improvidently granted, the prior status of the case is restored and the situation is the same as though the order or judgment is the same as though the order or judgment had never been entered”
- construing former § 59(g) of the Bankruptcy Act
- “When an order is set aside as improvidently granted, the prior status of the case is restored and the situation is the same as though the order or judgment had never been entered.”
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING
PER CURIAM:
The appellees have filed a petition for rehearing and a petition for rehearing before the Court en banc urgently insisting that there is a conflict between our decision in this case and the decision of another panel of this court in the case of Harold C. Abramson v. Boedeker, 379 F.2d 741 (5 Cir. 1967). We have given careful consideration to such contentions but are unable to agree with them. There are a number of factual distinctions involved and the controlling legal principles are essentially different.
In our decision in Wynne we were dealing primarily with the fundamental right of every alleged bankrupt in cases where an involuntary petition has been filed to demand and receive a trial by jury. In Abramson, a creditor of the bankrupt attacked the date of adjudication in a collateral proceeding brought by the Trustee to set aside as voidable preferences certain transfers made within four months of the date of adjudication. As clearly stated in Abramson (and as is evident from the opinion in Wynne), “The key is the defensive position taken by the debtor-alleged-bankrupt.” As pointed out in Abramson this fact is true, “Since the creditor cannot oppose the petition directly, he ought not to have the right to gain the same benefit through a collateral attack.”
The Abramson decision reserved judgment on a vital question which the court was required to decide in Wynne and in doing so used the following language:
“Whatever might have been the case had the debtor persisted in denial of bankruptcy, when the debtor here withdrew his answer and acquiesced in adjudication by default, the date of bankruptcy was fixed as of the date of the original petition. The District Court was in error in finding to the contrary.”
This reservation of judgment was no doubt based upon the fact that the bankrupt formally withdrew its defense and an adjudication by agreement and default was entered. In Wynne the bankrupt contested the petition from the beginning and continued to contest throughout the proceedings.
As to the doctrine of relation-back the Abramson opinion takes note of the fact that although the parties and the court persisted in discussing the problems in terms of such doctrine* “the answer cannot be found there.” In addition, Abram-son holds that the original allegations of the petition, couched in general terms, may be clarified by an amendment specifying the acts of bankruptcy in detail. In Wynne we were dealing with entirely new and different alleged acts of bankruptcy.
We have considered all of the contentions of the appellees and find them without merit. Moreover, we consider it unnecessary to point out other factual and legal distinctions apparent from a careful analysis of the .two cases.
The Petition for Rehearing is denied and no member of this panel or Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, Rule 25(a), sub-par. (b), the Petition for Rehearing En Banc is denied.