6 Div. 748. | Ala. | Apr 4, 1918
On the hypothesis that appellant, plaintiff below, is prosecuting this appeal with a purpose to reach and subject the sum of 90 cents, which is writ of garnishment found in the Jefferson County Bank, the matter attempted to be set up in his first replication to appellee's plea of discharge in bankruptcy would have been of some consequence, perhaps, if properly pleaded. But that replication, purporting to be a replication by way of confession and avoidance, was defective, in that it wholly failed to allege the facts upon which appellant relied to sustain his conclusion. If, on the other hand, we assume that the parties were contesting the right to the considerable sum found in the Traders' National Bank by appellant's subsequent writ of garnishment, it clearly appeared by record evidence that the replication could not be sustained. This merely serves to make plain the necessity for an allegation of something more than the mere conclusion of the pleader stated in the replication, for it needs no argument to show that service of garnishment on the Jefferson County Bank could not fasten a lien on money in the Traders' Bank.
The third replication was also bad, for that, if it intended to say, as probably it did, that the fund appellant sought to reach had not been scheduled, that was immaterial, since it nevertheless passed. 1 Remington Bankr. § 996.
Probably appellant's second replication, being negative in character, was as fully stated as it needed to be; but the ruling by which the court sustained the demurrer to it worked no harm, for the reason that the question of notice to appellant, the question to which this replication was addressed, appears to have been fully contested in the evidence, without any objection that the evidence on this question was without the issues presented.
The court allowed in evidence a certificate from the referee in bankruptcy by which, along with an exhibit thereto attached, it was made to appear that appellee was allowed to amend her schedule of assets and liabilities after this suit had been brought by including therein appellant as a creditor. A copy of the transcript of his docket, transmitted by the referee to the court of bankruptcy and remaining there as a part of the records of that court, and containing only the notation "schedule amended," was also admitted in evidence. The complaint against these rulings appears to be that there should *517 have been some formal judgment entry by the referee allowing the amendment; that such entry, or a certified copy thereof, would have been the only competent evidence of the allowance of the amendment; and that appellee should not have been allowed in this way to thwart the suit appellant had already brought in the state court. The proceeding for the amendment and its certification seem to have followed the statute. The amendment was, under the statute, allowable as of course at the time when it was allowed (Rem. Bankr. § 493); its certification was according to the statute (Act Cong. July 1, 1898, c. 541, § 21d, 30 Stat. 551 [U.S. Comp. St. 1916, § 9605]); nor does the statute require in terms or appear to contemplate any greater formality than was observed by the referee in this case. His notation of the allowance and filing of the amended schedule was sufficient, and the schedule itself constituted a part of the record to be transmitted to the court. Act, §§ 39, 42 (U.S. Comp. St. 1916, §§ 9623, 9626).
It is further argued that appellant had not notice of the appellee's amended schedule, the only schedule in which appellant appeared as a creditor. From the agreed statement of facts into which the parties have entered, the court below, trying the cause without a jury, was justified in drawing the conclusion that appellant did have notice in fact of the pendency of the proceeding in which appellee was adjudicated a bankrupt and discharged of her debts, and, we may further remark, this also obviated any objection to the process by which appellant's debt was scheduled, for, if appellant had knowledge or notice, however acquired, of the proceedings in bankruptcy in time to prove his claim — and that was the case here — his claim was barred whether scheduled or not. 2 Rem. Bankr. §§ 2777-2779.
Judgment affirmed.
ANDERSON, C. J., and McCLELLAN and GARDNER, JJ., concur.