Coffee v. Ball, Hutchins & Co., 49 Tex. 16

Coffee v. Ball, Hutchins & Co.

49 Tex. 16 | Tex. | 1878

Roberts, Chief Justice.

This suit having been brought in the District Court, and citation having been served upon the appellant before he filed his petition in bankruptcy, the suit on the note thus instituted by appellees did not necessarily abate, for want of jurisdiction, by reason of either the filing of said petition, or by the appellees having proved up *25and presented their claim on said note in the Bankrupt Court, or by his discharge in bankruptcy. (Bump, 114, 115.)

The note, so far as anything appears in the record and judgment complained of, may have been a debt which was not discharged by his proceedings in bankruptcy, by being a debt within the exceptions contained in the thirty-third section of the Bankrupt law. (Bump, sec. 33, p. 439.)

A State court in which a suit is brought will take no notice of proceedings in bankruptcy in a Federal court, unless it is properly presented in a way that it can be judicially acted upon.

The District Court of Galveston County, wherein said suit upon said note was pending, was the proper tribunal to determine that matter, had the discharge been pleaded as a defense. (Bump, sec. 34, pp. 443-44.) For that reason, it was necessary that appellant should have filed in said District Court a plea setting up his discharge. (Fellows v. Hall & Allen, 3 McLean, 281; Palmer v. Merrill, 57 Me., 29; In re Robinson, 6 Blatchf., 253.)

Having failed to do so, and judgment by default having been rendered against him upon said note originally sued on, he filed the petition in this case, in the nature of a bill in equity, to be relieved from the legal consequences of said judgment so rendered, in favor of appellees, against him.

Without testing the sufficiency of the petition, by having the exceptions to it ruled upon, there being a plea of general denial filed, a jury was waived, the cause was submitted to the court upon the pleadings and upon the facts agreed upon by the parties, and upon “the law and facts” a judgment was rendered against the appellant, from which he has ap_ pealed to this court.

To justify this remedy, it was necessary to allege and prove a valid defense, legal or equitable, and some good ground of mistake, accident, trust, or fraud, by which he was prevented from making his defense at the proper time.

*26The petition alleged, that the note upon which said judgment was rendered was given for a slave, purchased by appellant from appellees. That might have been sufficient to show that it was a debt not falling within the exceptions of the thirty-third section of the Bankrupt law, and consequently the discharge, if pleaded, would have been a defense to the note. But this fact was not proved, as shown by the agreed statement of facts in the record.

The petition also alleged, in substance, that the appellees had proved up their claim in bankruptcy; that he thought that the suit in the District Court had been dismissed, as it should have been, and appellees by their acts misled appellant, which they well knew, and notwithstanding which they took their judgment by default. There was no proof that appellees did anything to mislead the appellant, unless it was the act of proving up their claim in the Bankrupt Court; and that was not a fact which should have misled appellant.

There was no proof that appellees knew that appellant was misled by it, or had any right to presume it.

Thus the appellee has wholly failed to establish any equitable grounds of relief, upon the trial of the cause below.

When a party seeks to be relieved from a judgment, it is incumbent upon him to allege and prove all such facts, if not admitted, as may be necessary to establish affirmatively good grounds of equitable relief.

This not having been done in this case, we are not authorized to hold that the judgment of the court is erroneous.

Judgment affirmed.

Affirmed.