1134 | Ga. Ct. App. | Nov 10, 1908
(After stating the foregoing facts.)
Friesleben’s claim for salary from June to September inclusive was not discharged in bankruptcy, unless it was a provable debt. Whether it was a provable debt within the meaning of the national bankruptcy act is a question of serious doubt; but we do not think it is necessary to decide it. We are of the opinion that since the bankrupts appeared before the referee and urged that these damages were not provable, and obtained an intimation or ruling from the referee to that effect, in which Friesleben acquiesced, to his prejudice in that court, it does not now lie in the mouths of the bankrupts to say that these damages were provable. “It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that j)osition, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Wakelee, 156 U. S. 689 (15 Sup. Ct. 555, 39 L. ed. 578); Philadelphia etc. Railroad v. Howard, 13 How. 336-7 (14 L. ed. 157); Luther v. Clay, 100 Ga. 241 (28 S.E. 46" date_filed="1897-02-22" court="Ga." case_name="Luther v. Clay">28 S. E. 46, 39 L. R. A. 95); Vaughn v. Strickland, 108 Ga. 660 (34 S.E. 192" date_filed="1899-08-02" court="Ga." case_name="Weaver v. Killian">34 S. E. 192); Waldrop v. Wolff, 114 Ga. 619-620 (40 S.E. 830" date_filed="1902-02-04" court="Ga." case_name="Waldrop v. Wolff">40 S. E. 830); Niagara Ins. Co. v. Williams, 1 Ga. App. 604-5 (57 S.E. 1018" date_filed="1907-04-11" court="Ga. Ct. App." case_name="Niagara Fire Insurance v. Williams">57 S. E. 1018). Judgment affirmed.