Leader v. Mattingly

140 Ala. 444 | Ala. | 1903

SHARPE, J.

To the amended complaint no valid objection was raised by demurrer. In the complaint as originally filed and as it stood after amendment the cause of action was ex contractu, being for the breach of a bond given to indemnify the plaintiff against damage possible to result from the levy of an execution in the hands of himself as constable.

From the complaint it appeared that the damages consisted of an amount plaintiff was compelled to pay on a judgment obtained against him on March 17, 1902, by the owner of the property levied on, and no breach of the bond is averred as accruing prior to that date. None of the special pleas filed by the defendant sureties setting up Leader’s discharge in bankruptcy averred or showed that Leader’s petition in bankruptcy was filed after the accrual of such damages or after the bond had become a liability against Leader other than such as was contingent upon the uncertain event of its breach, and for lack of such averment, those pleas were sfibject to the demurrers interposed to them, respectively. The present bankrupt act makes no provision for proving contingent liabilities against a bankrupt estate. — Collier on Bankruptcy, (4th ed.), 451, 445; 5 Cyc. Law & Procedure, 324. Debts to be provable against such estate must be in existence when the petition in bankruptcy is filed and those not provable are not affected by the discharge.— Collier on Bankruptcy, (4th ed.), 192, 193. See also, In re Burka (D. C.), 104 Fed. 326, construing in this regard section 63 of Bankr. Act, July 1, 1901, c. 541. Moreover, a discharge in bankruptcy of Leader from liability on the bond would not have been effective to discharge the sureties.

The evidence showed that Leader’s petition in bankruptcy was filed January 24, 1902, and that the liability of himself and sureties' on the bond was at that time contingent merely and not provable. Hence, Leader’s plea averring the debt was provable and was discharged in bankruptcy was not sustained by the evidence.

In refusing to allow defendants Pearsons and Land-ders to file during trial a plea setting up a release of themselves from the bond, the trial court acted within its discretion; and without being specially pleaded the suggested release was not available to them as a defense. As a general rule matters of defense, other than those in denial of the complaint’s averments, are required to be specially pleaded.-Code, 1896, § 3295; American, etc. Co. v. Ryan, 112 Ala. 337; Petty v. Dill, 53 Ala. 641. It not appearing that the offered plea was treated as filed, the fact that evidence was admitted tending to prove its statements does not affect the propriety of the judgment, since it was proper to render the judgment upon the issues joined. It may be further noted that-the dis-allowance of this attempted defense is not matter of which all the defendants have, cause for complaint, and the assignments of error thereon being by all the defendants jointly, are not well made.—Rudulph v. Brewer, 96 Ala. 189; Kimbrell v. Rogers, 90 Ala. 339; Magnetic Ore Co. v. Marbury Lumber Co., 113 Ala. 306.

Assignments of error not treated of herein, are not insisted on in defendants’ brief and are, therefore, considered. as waived.—Scarbrough v. Borders, 115 Ala. 436.

Judgment affirmed.