55 Ind. 52 | Ind. | 1876
At the June term, 1867, James Moor-man recovered a judgment, on a promissory note, in the Randolph Circuit Court, in this State, against the appellant, Hays, Henry Jacobs, Benjamin S. Evans, John Lindsey, Philip Barger, Robert B. Cowgill and John A. J ones, for the sum of two thousand and nineteen dollars and thirty-three cents, and costs, in which judgment said Jacobs, Evans and Lindsey were principals, and said appellant, Barger, Cowgill and Jones were sureties.
On the 8th day of September, 1868, appellant, Hays, was discharged as a bankrupt.
In 1878, said Barger, Cowgill and Jones procured the issuance of an execution on said judgment, for their benefit, against the appellant, Hays, and placed it in the hands of Ford, the appellee, sheriff of said county, to be levied upon the goods of appellant, whereupon appellant instituted this suit for an injunction, and, in his complaint, averred, “ That heretofore, to wit, on the 8th day of September, 1868, in and by the order, judgment and decree of the United States District Court of Indiana, the said plaintiff' was fully discharged from the payment of all his debts, provable under the general bankrupt law of the United States, a copy of which discharge is filed herewith, and made part hereof, which reads thus:
“£ United States of America, District of Indiana. In the matter of Benjamin Hays, Bankrupt. No. 622. Whereas, Benjamin Hays has been duly adjudged a bankrupt, under the act of Congress, establishing a uniform system of bankruptcy throughout the United States, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court, that said Benjamin Hays be forever discharged from all debts and claims, which, by said act, are made provable against his estate, and which existed on the 4th day of May, 1868, on which day the petition for adjudication was filed by him; excepting such debts, if any, as are, by said act, excepted from the operation of a discharge in bankruptcy.’ ”
To this copy of discharge is attached the official certificate of John D. Howland, clerk of the court, under his hand and the seal of the court, followed by the official certificate of Judge Gresham, that said Howland is the-clerk of the court, and that his certificate is in due forcn of law.
The appellees maintain that the ruling on the demurrer was correct, because,
1st. The complaint does not show that the court granting the discharge had jurisdiction.
2d It does not show that the judgment, the collection of which is sought to be enjoined, is not a debt excepted from the operation of a discharge in bankruptcy, by the act of 1867.
3d. It does not set forth a copy of the certificate of discharge, but only a copy of the judgment and decree of discharge.
As to the first ground of objection to the complaint, we think it is invalid.
It is a general rule of law, that, where the record discloses nothing on the point, jurisdiction of domestic courts, of the person and subject-matter, will be presumed in cases where the judgments of those of general jurisdiction come in question collaterally. Horner v. Doe, 1 Ind. 130. Judgments of the District Court of the United States are entitled to this presumption.
In Ruckman v. Cowell, 1 N. Y. 505, Bronson, J., in delivering the opinion of the court, says:
“ But when the discharge is given in evidence, jurisdiction to grant it should be presumed until the contrary appears. It would be otherwise if the discharge were granted by a commissioner, or a court of strictly inferior jurisdiction. But the district and circuit courts of the United States, though of limited jurisdiction, are not inferior courts in the technical sense of the term. If jurisdiction do not appear upon the proceedings, their judgments and decrees will be reversed on error or appeal.
If the jurisdiction is presumed till the contrary is shown, it seems very clear that the party on whom is the burden of showing the contrary, should plead the facts evidencing want of jurisdiction. See Knœffel v. Williams,, 30 Ind. 1. See as to this point, also, sec. 83, 2 R. S. 1876, p. 76. We may observe, parenthetically, that it is decided in Puckman v. Cowell, supty, that, where a judgment creditor seizes the goods of a bankrupt, after his discharge, on a judgment rendered before the discharge, he is liable as a trespasser, whether he knew, at the time, of the discharge or not, but that the officer executing the writ will be protected, if the same is regular on its face.
On the second point of objection to the complaint, viz., that it does not negative the fact that the debt was one within the exception contained in the bankrupt act, we think it sufficiently manifest upon the face of the complaint, in the absence of a direct averment, that the debt was one embraced by the discharge of the bankrupt.
The debt consisted of money due upon a judgment. The judgment was rendered upon a promissory note. Prima facie, it is not for a fiduciary debt, etc. There are authorities, that, if the judgment had been recovered as damages for a tort, still, having been rendered prior to the commencement of the proceedings in bankruptcy, it would be a debt embraced by the discharge. See Bump on Bankruptcy, note to sec. 5119.
The claim sought to be enforced by the execution, in this case, may he inferred to he that of contribution, by a co-surety, to the payment of the above judgment. If such be the fact, that claim was provable under the pro
The judgment, as we have seen, was rendered in June, 1867, was paid by the surety, in October, 1867, nearly a year prior to the discharge of appellant, as a bankrupt, which occurred in September, 1868. See Bump on Bankruptcy, 92, 93; Tobias v. Rogers, 13 N. Y. 59.
Dunn v. Sparks, 1 Ind. 397, is not in point to the question here involved. In that case, no steps had been taken to collect the bill of exchange, and no payment had been made by the co-surety, till after the discharge of a co-surety. This fact is stated in the opinion in Dunn v. Sparks, supra, as having an important bearing on the decision of the case; while Tobias v. Rogers, supra, is directly in point. i
The third and last objection is, that the complaint does not contain a copy of the certificate of this discharge, but only a copy of the decree of discharge.
The bankrupt law of 1841, sec. 4, contained this provision :
And “ such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts,” etc.
In Hayes v. Flowers, 25 Miss. 169, a case governed by the bankrupt law of 1841, the defendant pleaded the decree of discharge only. A demurrer to this plea was sustained. On appeal, the Supreme Court said:
“ The law makes 'the discharge and certificate the bar to the action. That which constitutes the bar must be pleaded. The certificate is not pleaded in this instance, and, therefore, the plea is defective.”
Our present bankrupt law is different. It enacts (see Bump, supra:
“Sec. 5114. If it shall appear to the court that the bankrupt has in all things conformed to his duty under this title, and that he is entitled, under the provisions thereof, to receive a discharge, the court shall grant him a discharge
“ Sec. 5115. The certificate of a discharge in bankruptcy shall be in substance in the following form: “District Court of the United States, District of-.
“Whereas-has been duly adjudged a bankrupt under the Revised Statutes of the United States, Title ‘ Bankruptcy,’ and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said-bo forever discharged from all debts and claims which by said Title are made provable against his estate, and which existed on the-day of--, on which day the petition for adjudication was filed by (or against) him; excepting such debts, if any, as are by law excepted from the operation of a discharge in bankruptcy.
“ Given under my hand and the seal of the court at -, in the said district, this — day of-,-.
[seal.] -, Judge.
“ Sec. 5119. A discharge in bankrutcy duly granted shall, subject to the limitations imposed by the two preceding sections, release the bankrupt from all debts, claims, liabilities, and demands which were or might have been proved against his estate in bankruptcy. It may be pleaded by a simple averment that on the day of its date such discharge was granted to the bankrupt, setting a full copy of the same forth in its terms as a full and complete bar to all suits brought on any such debts, claims, liabilities or demands. The certificate shall be conclusive evidence in favor of such bankrupt of the fact and regularity of such discharge.”
The two preceding sections, above mentioned, are not the two preceding sections copied in this opinion, but are sections 5117 and 5118 of Bump on Bankruptcy.
It will be seen that, by the present banlmipt act, the discharge is spoken of as one thing, viz., the judgment
"We think the discharge alone was properly pleaded, in the complaint in this case, as a bar to proceedings on the judgment described in the complaint, and as a ground for enjoining the sale on the execution.
The judgment is reversed, with costs. Cause remanded, with instructions to overrule the demurrer to the complaint, and for further proceedings in accordance with this opinion.