Marlenee v. WarkentinMarlenee v. Warkentin
- Reporters:
- , ,
- Before:
- York
This is an action to renew a judgment recovered by respondent on December 28, 1936, against appellant in the sum of $14,476. The only defense pleаded is a discharge in bankruptcy.
From a judgment decreeing that “the liability of the defendant to the plaintiff, as evidenced by the said judgment, duly made and entered on December 28, 1936, as aforesaid, is a liability for a willful and malicious injury to the property of plaintiff, and further said liability has not been dischаrged, in whole or in part through the operation of a discharge in bankruptcy, or otherwise, and the same now remains an existing liability of the defendant to the plaintiff in the sum of $14,552.20, this appeal has been perfected, it being urged by appellant that the trial court erred in its findings of fact numberеd fifth and sixth, and in denying his offer to produce certain documents in evidence.
The court admitted in evidence the pleadings, findings and judgment in the original аction, as well as a certified copy of the discharge in bankruptcy and a portion of the schedule, and found, among other things, as follоws:
“Fourth: It is true that the defendant was adjudicated a bankrupt on February 13, 1937, by the District Court of the United States at Los Angeles, California, and that on Septеmber 7, 1937, he was discharged from all provable debts and claims against his estate which existed on February 13, 1937, which were duly scheduled and not exceрted by law from the operation of a discharge in bankruptcy.
“Fifth: It is true that defendant filed a schedule of his liabilities with his petition for adjudication аs a bankrupt, *179 and it is true that his liability to plaintiff as indicated by said judgment of December 28, 1936, was included in said schedule of liabilities, but notwithstanding the plaintiff’s place of residence was well known to the defendant at the date of the filing of said schedule the same was not included therein, nor was there included therein a statement that such place of residence was unknown to the defendant. And the court further finds that said liability was not duly scheduled and that the plaintiff had no notice or actual knowledge of the proceedings in bankruptcy in time for proof and allowance of her sаid claim;
“Sixth: It is not true that the defendant’s liability to the plaintiff as evidenced by said judgment, made and entered as aforesaid on December 28, 1936, was disсharged by the defendant’s discharge in bankruptcy made and entered on September 7, 1937, as aforesaid, nor at any time or at all, by said or any dеcree of discharge in bankruptcy or otherwise, and that said liability is excepted from the operation of the bankruptcy act.”
In supрort of his specifications of error relating to the trial court’s findings of fact numbered fifth and sixth, hereinbefore recited, appellant argues that respondent had actual notice of the bankruptcy proceedings, because certain documents referring to such proсeedings were filed in the original action in which the judgment here sued upon was rendered. The evidence adduced at the trial of the instant action does not establish that such documents were ever called to the attention of respondent or that she had either actual notiсe or actual knowledge of the bankruptcy proceedings. The portion of the schedule received in evidence (Defendant’s Exhibit A) fаils to show the respondent’s place of residence, and also fails to show that her place of residence is unknown. She testified that hеr place of residence had been the same since 1926, that she always had a telephone in her residence during the period in question, and that appellant had visited her at said residence prior to her husband’s death.
Section 7 of the Bankruptcy Act (
In
Van Denburgh
v.
Goodfellow,
19 Cal.2d 217, 222-224 [120 P.2d 20], in which the bankrupt listed an incorrect address for one of his creditors, it was held: “It is well settled that a debt is not duly scheduled if the bankrupt has listed the creditor’s address incorrectly. (See cases cited under
Appellant also urges that the original action was not based on any alleged tort but was purely one of partnership accounting and therefore could not support a judgment “for conversion or wilful and malicious injuries to the person or property of another.”
However, finding numbered ten made by the trial court in said originаl action and quoted in appellant’s opening brief, provides, among other things, “that defendant’s conduct regarding said partnership and the рroperty thereof has been marked by deceit, dishonesty, falsehood and fraud . . . and the Court finds that said defendant has wrongfully, maliciously, fraudulently and unlawfully appropriated and converted to his own personal use said decedent’s nine-tenths interest in said partnership and the property thereof. ...”
The findings in the instant cause recite certain provisions contained in the judgment rendered in the original action, among which is the following:
*181 “4. That said defendant has wrongfully, fraudulently, and unlawfully appropriated and converted to his own personal use the whole of said decedent’s interest in said partnership and the property thereof, together with the aforesaid sum of Five Thousand Four Hundred Seventy-six Dollars ($5,476.00) and has thereby injured, damaged and defrauded said estate and the persons entitled thereto in the sum of Fourteen Thousand Four Hundred and Seventy-six Dollars ($14,476.00); and that the рlaintiff is entitled to recover said sum from said defendant. ’ ’
It must be assumed that the evidence presented at the trial of the original action was sufficient to support said findings of fact and the judgment based thereon which was rendered on December 26, 1936, and which “remains due, owing and unpaid from the defendant to the plaintiff”; and that the trial court in the instant case properly adjudged that the liability of appellant herein, as evidencеd by said judgment, “is a liability for a wilful and malicious injury to the property of plaintiff.”
Section 17 of the Bankruptcy Act (
For the reasons stated, the judgment appealed from is affirmed.
Doran, J., and White, J., concurred.