The effect of a failure to apply for a discharge is the same as the effect of a refusal thereof. In re Emery (D.C.) 6 F.Supp. 896.         In re Lyons (D.C.N.Y.) 287 F. 602, an application for discharge was not prosecuted in the first bankruptcy, and the court recognized the right of the bankrupt to file a second petition and obtain a discharge from all former debts, but the weight of authority is to the contrary.

In re Baker (D.C.) 275 F. 511; In re Lyons (D.C.) 287 F. 602; Prudential Loan Finance Co. v. Robarts (C.C.A.) 52 F.2d 918. In re Emery (D.C.) 6 F. Supp. 896, 898, holds to the contrary. There are numerous cases in which the final orders provided for the exception from the operation of the discharge of all debts provable in the first proceeding whether scheduled or not in the prior proceeding.

While there are some cases to the contrary, by far the greater number of cases hold that, if there has been failure to file application for discharge under the first petition in bankruptcy, the discharge is barred from the same debts under a second or any later petition. Some of these cases are: In re Fiegenbaum, 121 F. 69 (C.C.A. 2, 1902); Kuntz v. Young, 131 F. 719 (C.C.A. 8); In re Kuffler, 151 F. 12 (C.C.A. 2, 1907); In re Bacon, 193 F. 34 (C.C.A. 5, 1912); In re McMorrow (D.C.) 52 F.2d 643; Horner v. Hamner (C.C.A.) 249 F. 134, L.R.A. 1918E, 465; Siebert v. Dahlberg (C.C.A.) 218 F. 793; In re Semons, 140 F. 989 (C.C.A. 2, 1905); In re Mayer (D.C. 1933) 4 F. Supp. 203; In re Emery (D.C. 1934) 6 F. Supp. 896. Some of the courts have sought to relieve the bankrupt from the seeming harshness of such a construction of the law and have held to the contrary.

* * * The District Judge, differing with the referee, denied the bankrupt his discharge solely because of the pendency of his former application." Upon appeal to the Supreme Court the lower courts were sustained. 269 U.S. 121, 46 S. Ct. 41, 70 L. Ed. 193, 6 A.B.R. (N.S.) 744. A somewhat similar case is the very recent one of In re Emery (D.C.) 6 F. Supp. 896. As stated above, while none of these cases are on all-fours with the present case, they appear to me to establish a principle applicable in this case, and, the attention of this court having been drawn to its record of the earlier case in which Hammond was discharged less than six years ago, it must take judicial notice of that case and refuse a discharge in this case even though the objecting creditor has refused to offer evidence and has filed a motion to withdraw his objections.

A bankrupt's failure to apply for a discharge is equivalent to a judgment by default in favor of the said bankrupt's then existing creditors, and is res judicata in any subsequent bankruptcy proceedings, and precludes him from obtaining a discharge from any debts previously scheduled. Sec. 32, chap. 3, U.S.C.A.; 7 C.J., sec. 650; Freshman v. Atkins, 289 U.S. Sup. Ct. 121; 7 Remington on Bankruptcy, secs. 3183, 3184 and 3185; Emery v. Michigan, 6 F. Supp. 896. The appellee contends that it was the duty of the appellant, when he received notice of the application for a discharge in the bankruptcy court, to appear and contest the right to discharge as to this appellant, and to this we respectfully submit that the law does not require.