Bailey's Admx. v. Gleason

76 Vt. 115 | Vt. | 1903

Munson, J.

In pleading the judgment of a superior court of general jurisdiction it is not necessary to allege the facts that gave the court jurisdiction of the subject matter or the parties. The judgments of a district court of the United States in bankruptcy proceedings are held by our court to be within this rule. Downer v. Chamberlin, 21 Vt. 414.

The declaration counts upon a promissory note and money loaned. Such claims are prima facie provable. It is not necessary that the defendant allege this fact when1 it thus appears from the declaration, whatever the rule may be in other cases. “The plea need not allege that the debt was provable where the debt alleged in the declaration is prima facie provable.” Bump on Bankruptcy, 11 Ed. 724, citing Cutter v. Folsom, 17 N. H. 139.

The statute excepts from the operation of the discharge certain classes of provable debts. It is not necessary for the defendant to show by his plea that the debt was not within any of these excepted classes. It is for the plaintiff to bring the debt within some exception by his replication. We are aware that some courts hold otherwise, but we adopt this rule as more consistent with the established principles of pleading.

The exception relating to debts- not scheduled in time for proof and allowance, although included in the list referred to, is a provision of a different character. This relates to- matters essential to- the operation of the discharge upon claims of every nature. To- give the discharge effect as to- the claim in suit, it must appear, not only that the debt was provable, but that it was duly scheduled by the debtor or that the creditor had knowledge of the proceedings. It is this which gives the court jurisdiction of the particular creditor, and makes its discharge a discharge from his claim. The ordinary presumptions of regularity do not touch him, for unless named in the schedule he is unknown to- the proceedings. Unless connected with the proceedings by the schedule or by knowledge of them, there is no discharge as to- him. So in pleading the discharge in bar of his claim there must be an allegation of that which makes the discharge effective against him.

Judgment affirmed, and cause remanded.