137 Minn. 123 | Minn. | 1917
On October 20, 1913, defendant executed his promissory note for $173.97, payable, one year after date, to the order of the First National Bank of Montevideo. Before it was delivered, and for the purpose of giving credit thereto, plaintiff, as an accommodation to the maker, indorsed thereon a guarantee of payment. December 22, 1914, plaintiff was compelled to pay the note and thereafter brought this action against defendant, the maker. The complaint set out the note and the guarantee indorsed; alleged that plaintiff received no consideration; that it was signed by him for the accommodation of defendant, and upon his request and promise to pay when due; that defendant did not pay the note, except $15 thereof, and that plaintiff, on the date mentioned, was compelled to pay and did pay the balance. The answer denied none of the allegations in the complaint, but, as a defense, averred that defendant was on April 17, 1914, duly adjudged a bankrupt in the proper Federal court; that in his petition to be so adjudged he set forth a list of his creditors with their places of residence together with an inventory of his assets; that on August 1, 1914, he was duly discharged from all his provable debts, and “that the note sued upon and which is the basis of plaintiff’s complaint herein was due and owing to plaintiff at the date of the filing of said bankruptcy petition * * * and upon the date of the said adjudication in bankruptcy, and was included in the schedule of debts owing by said bankrupt filed with the aforesaid petition.” The reply denied the allegations of the answer. The court found the allegations of the complaint true, and that defendant was adjudged a bankrupt on the date alleged and an order made August 1, 1914, discharging him from all debts and claims which were by law made provable against his estate and which existed on the day he was adjudged
It is doubtful whether any question is reviewable upon this appeal. The case was evidently tried to the court without a jury, for there are findings of fact and conclusions of law, yet the errors assigned are: (1) “That the court erred in refusing to set aside and vacate the order for judgment in favor of respondent, dated Aug. 10th, 1916, and for judgment in favor of appellant, notwithstanding the verdict, 0r if * * * denied, then for a new trial; (2) that said verdict is not justified by and is contrary to the evidence; (3) that upon the evidence submitted defendant was and is entitled to a judgment in his favor.” There was no verdict. The findings of fact are numerous, some of which, standing admitted by the pleadings, in any event, would be unassailable, and it is well settled that an omnibus assignment that the evidence does not sustain the findings does not challenge any particular finding. 1 Dunnell, Minn. Dig. § 361. We conclude that no possible question is reviewable here except the one whether, under the findings as made, judgment should have been in defendant’s favor, instead of plaintiff’s.
It was found that the note here involved was not properly scheduled by defendant in'the bankruptcy proceeding. The payee or the holder of the note was not named as creditor. Therefore as to such payee or holder the order of discharge did not extinguish the note, but suit could thereafter be maintained thereon. It would seem to follow that, when afterwards plaintiff was compelled to take it up, he became subrogated to the rights of the payee or holder and can, with the same effect as the latter, assert that the maker’s bankruptcy discharge is unavailing as a defense. In other words, because the maker did not properly schedule this note his discharge did not extinguish the debt represented thereby,
It might be argued that since the findings indicate that there was no proof whether or not the payee or holder of the note had knowledge of the bankruptcy proceeding, therefore the prima, facie effect of the order of discharge is not overcome. We, however, think that when the improper scheduling was established the defendant could claim nothing for the discharge unless he adduced proof that payee or holder of the note had actual knowledge of the bankruptcy proceeding in time to avail himself of the right to file and prove his claim therein. Sloan v. Grollman, 113 Md. 192, 77 Atl. 577, Ann. Cas. 1912A, 544; Parker v. Murphy, 215 Mass. 72, 102 N. E. 85; Wineman v. Fisher, 135 Mich. 604, 98 N. W. 404; Armstrong v. Sweeney, 73 Neb. 775, 103 N. W. 436; Weidenfeld v. Tillinghast, 54 Misc. 90, 104 N. Y. Supp. 712; Bailey’s Admx. v. Gleason, 76 Vt. 115, 56 Atl. 537, and Fields v. Rust, 36 Tex. Civ. App. 350, 82 S. W. 331. We conclude that the assignments of error do not present any grounds for disturbing the decision of the trial court.
Order affirmed.